More Than a Name:

Glossary of Key Terms

Biological sex: the biological classification of
bodies as male or female, based on factors including external sex organs,
internal sexual and reproductive organs, hormones, and chromosomes.

Bisexual: a person who is attracted to both sexes.

Gay: a synonym for homosexual. Sometimes used to
describe only males who are attracted primarily to other males.

Gender: the social and cultural codes used to
distinguish between what a society considers "masculine" or "feminine" conduct.

Gender expression: the external characteristics and
behaviors which societies define as "masculine" or "feminine"-including such
attributes as dress, appearance, mannerisms, speech patterns, and social
behavior and interactions.

Gender identity: a person's internal, deeply felt
sense of being male or female, or something other than or in between male and
female.

Heterosexual: a person attracted primarily to people
of the opposite sex.

Homosexual: a person attracted primarily to people of
the same sex.

Lesbian: a female attracted primarily to other
females.

LGBT: lesbian, gay, bisexual or transgender; an
inclusive term for groups and identities sometimes also associated together as
"sexual minorities."

Queer: Often used as a slur in English to refer to
lesbian, gay, bisexual, and transgender persons, the term "queer" has been
reclaimed by many people in the US and other countries as an expression of
pride in one's sexual orientation and gender identity.

Sexual orientation: the way in which a person's
sexual and emotional desires are directed. The term categorizes according to
the sex of the object of desire-that is, it describes whether a person is
attracted primarily toward people of the same or opposite sex, or to both.

Transgender: One whose inner gender identity differs
from the physical characteristics of their body at birth. Female-to-male (FTM)
transgender people were born with female bodies but have a predominantly male
gender identity; male-to-female (MTF) transgender people were born with male
bodies but have a predominantly female gender identity.

Transsexual: One who has undergone sex reassignment
surgery so that his/her physical sex corresponds to his/her internal gender
identity.

I. Introduction

A. Summary

In the mid-1990s, South Africa
emerged from decades of oppression, during which equality had been both a
rallying cry and a remote dream, and wrestled with the question of how to turn
the slogan into a reality for its peoples.

At the same time, politicians elsewhere
in southern Africa¾facing shrinking
public support and the threat of electoral defeat¾began
exploring how to make inequality a powerful slogan in itself. One leader
discovered a potential target and a vituperative language that struck a
responsive chord among his people. Others followed suit. They have echoed and
reinforced one another across borders and over time¾scapegoating one group of people for their countries'
difficulties, and explicitly excluding "homosexuals" from constitutional
protections granted to their other citizens.

Southern Africa is burdened by
poverty and political uncertainty, and devastated by higher rates of HIV/AIDS
(human immunodeficieny virus/acquired immunodeficiency syndrome) infection than
any other region in the world. Yet in some countries, politicians, instead of
directly addressing those issues, have made calls to persecute and cast out
homosexuals (or "gays and lesbians," "sodomists," or "sexual perverts")
commonplace. Robert Mugabe, president of Zimbabwe, popularized those calls
through widely publicized statements, reiterated regularly since 1995. "We
don't believe they [gay men and lesbians] have any rights at all," he said, "It
cannot be right for human rights groups to dehumanize us to the status of
beasts." Mugabe justifies his intolerance with the claim that homosexuality is
"un-African," describing it as a disease "coming from so-called developed
nations."

Sam Nujoma, president of Namibia,
took up the cry almost immediately. According to an official statement by
Nujoma's party,

Most of ardent
supporters of this perverts [sic] are Europeans who imagine themselves to be
the bulwark of civilization and enlightenment... we made sacrifices for the
liberation of this country and we are not going to allow individuals with alien
practices such as homosexuality to destroy the social fabric of our society.

We are convinced
that homosexuality is not a natural and objective form of moral history but a
hideous deviation of decrepit and inhuman sordid behavior.... Homosexuality
deserves a severe contempt and disdain from the Namibian people and should be
uprooted totally as a practice.

Politicians in Zambia in 1998
outdid one another in condemning the only homosexual man in the entire country
who had dared to "come out" to the press. Botswana not only clung to its
colonial-era criminalization of male homosexual acts, but in 1998 broadened it
to punish women having sex with women. The leaders of other countries have
joined the chorus, with President Yoweri Museveni of Uganda declaring in 1999
that "I have told the CID [Criminal Investigations Department] to look for
homosexuals, lock them up and charge them."

In this report, Human Rights
Watch and the International Gay and Lesbian Human Rights Commission (IGLHRC)
document and analyze the impact of state-sponsored homophobia in Zimbabwe,
Namibia, Zambia, and Botswana. The report shows how these attacks attempt to
create an atmosphere of intolerance in which governments can erode the basic
principles of human rights, and individuals can abuse others with impunity. It
contrasts these to the different situation in South Africa, where the
constitution has promised an end to discrimination based on sexual
orientation-but where a lack of will as well as foresight has kept these
promises short of fulfillment.

As this report documents, the
verbal attacks by political leaders have often led to persecution and
violence. In Zimbabwe and Namibia, in particular, public vilification has set
off police harassment of those who break norms for sexual conduct and gender
expression. Official crackdowns have frequently followed politicians'
statements. People have been detained and tortured by police, or abused by
prison guards.

Throughout the region, neighbors,
strangers, and families have also joined in the violence. In the communities
where they live, men and women accused of homosexuality have been assaulted and
often driven underground. Some have been expelled from schools or jobs, or
chased from hospitals or homes. Some have been driven into exile. Some have
committed suicide.

In Botswana, Namibia, Zambia, and
Zimbabwe, laws criminalizing consensual homosexual conduct¾so-called "sodomy laws"¾enable many of these abuses. Such laws
violate international protections of the right to privacy, and protections
against discrimination. Yet basic freedoms of association, assembly, and
expression are also under threat. In all four countries, civil-society
organizations have been denied legal status or threatened with closure because
they defended homosexuals. Publications have been censored; peaceful
gatherings have been harassed or denied protection.

In many countries, however, civil
society has remained silent about these violations-including organizations
dedicated to the defense of human rights. Namibia and Botswana have revealed
exceptions; there, feminist activists and human rights defenders, as well as
leaders of some Christian churches, have spoken out against intolerance. In
many places, however, tenuous organizations of gays and lesbians, identifying
by the names that politicians use against them, have been left to defend
themselves as best they can.

South Africa presents a different
example. The principle of equality and non-discrimination embodied in the
country's 1996 constitution sees a source of strength in the diversity of a
country with eleven official languages, innumerable religious institutions, and
uncounted and often contradictory cultural traditions. The constitution vows
in its preamble to "heal the divisions of the past" and to "lay the foundations
for a democratic and open society in which government is based on the will of
the people and every citizen is equally protected by law." It creates
institutions as well as protections toward this goal, striving to accommodate
difference while defusing violence.

Profound economic inequalities
transect South Africa; racial, ideological, and sexual violence persists; the
few who can obtain AIDS drugs live, while millions prepare to die. While steps
taken by the government to address these divisions have been important, they
remain inadequate. In this report, we show the persistence of community
prejudice and violence. We document how, in the absence of clear state action
to implement it, the constitution's Equality Clause remains inaccessible and
unfulfilled for lesbians and gay men living in townships and rural areas. We
examine the foot-dragging of political leaders in changing laws, and in
creating mechanisms for enforcement and remedy. Silence and inaction endanger
the constitution's promise.

Yet other states still refuse
even to make such a promise.

B. Contexts: HIV/AIDS, Inequality, Identity

A number of contexts need to be
understood as a background to the spread of state-sponsored homophobia in the
region.

The first is the
intersection of sexuality with the massive, overwhelming, and mounting HIV/AIDS
pandemic. The disease has already claimed over 21 million lives in sub-Saharan
Africa, and the southern African countries in which this research was conducted
are the global epicenter of the crisis. The epidemic is so widespread in the
region-about one in four adults is infected in most of these countries, in
Botswana more than one in three-that every sexually active person may be
considered a member of a high-risk group. The proximity of death is a fact of
life in every country discussed here. Many people interviewed in this report
have already died of AIDS.

As the Appendix to this report
shows, social prejudice and criminal penalties against certain kinds of sexual
conduct long antedate the appearance of AIDS. Yet the pandemic and the
attendant atmosphere of fear give states and societies additional incentives to
control and punish non-conforming sexualities¾while
making that repression doubly destructive.

Although the predominant means of
HIV transmission in southern Africa is heterosexual sexual activity, many
segments of society still associate AIDS with "homosexuals." This can compound
the marginalization of many people living with HIV/AIDS, who face additional
stigma through the presumption that they have practiced prohibited sex.
Meanwhile, those who endure discrimination for engaging in homosexual activity
may find they are presumed as well to be both victims of AIDS and its
"carriers." Men who have sex with men, and women who have sex with women, often
fear the social and legal consequences of seeking testing or treatment.

On a larger scale, the burgeoning
epidemic has arguably hardened opposition to repealing sodomy laws, though this
is difficult to document when both HIV/AIDS and same-sex conduct are so
shrouded in silence and stigma. The social devastation which AIDS brings¾the collapse of family and community
structures¾is sometimes blamed on a
"homosexuality" encroaching from beyond national borders. Fears enveloping HIV
have certainly contributed to repressing discussion of, and education about,
sexual health and sexual rights.

The history of responses to the
AIDS pandemic shows that any national HIV/AIDS prevention effort hoping for
success should work respectfully with communities made vulnerable by their
sexual conduct or orientation, and should protect their human rights as a
priority. Unless they can openly and safely seek and gain access to HIV/AIDS
prevention services and information, men who have sex with men and women who
have sex with women are at particular risk in the epidemic. The rhetoric of
discrimination documented in this report is an acute threat to the anti-AIDS
efforts these countries have mounted.

A second context is the uneasy
course of democratization in the region.

The struggle against colonialism
and white minority rule lasted longer in southern Africa than almost anywhere
else in the continent. Though Zambia and Botswana achieved independence from
Britain in 1964 and 1966 respectively, and Portugal relinquished Angola and
Mozambique in 1975, Zimbabwe held its first all-race elections only in 1980,
Namibia in 1990, and South Africa in 1994. Progress has been made toward
establishing democratic processes and institutions in all these countries, but
it has been uneven and uncertain. The accomplishment of South Africa¾not only in holding free elections, but in
undertaking a wholesale transformation of the repressive apparatus of the
colonial state¾remains virtually
unique.

In
Zimbabwe in particular, President Mugabe presides over a dissolving economy and
a deep popular demand for democracy. Gays and lesbians have served him as a
scapegoat for the first and a sideshow from the second. Mugabe speaks of his
country's gays and lesbians as both servants and symbol of forces outside
Zimbabwe, and outside Africa, threatening the cultural integrity and welfare of
his country. He sees them as vanguard of, and metaphor for, a neo-colonial
invasion.

Sexuality
and gender are loaded questions in every country and culture, involving as they
do the ways in which societies define and reproduce themselves. That cultural
weight can also make them convenient issues for states to exploit, in the
effort to impose some semblance of political unity on fractious populations-and
for politicians to employ, in the quest to preserve power.

Zimbabwe's
economic unraveling, the collapse of its public health system, and its
political instability are real disasters. In translating them into the terms of
a culture war, however, Mugabe's only success is in changing the subject. In a
characteristic speech in 2000, he attacked the United Kingdom (U.K.), which had
condemned his policy of land seizures, accusing it of opposing Zimbabwe because
he personally opposed homosexuality. "We are against this homosexuality," he
said, "and we as chiefs in Zimbabwe should fight against such Western practices
and respect our culture." And he concluded: "These economic woes will come and
go. So let us unite against the enemy."

When Mugabe's attacks on
homosexuals began, the human rights community in Zimbabwe¾with a few exceptions¾failed to respond. Some voiced fear that defending a marginal
group in a hostile environment would devastate their work; others refused to
see the attacks as relevant to their work as rights activists.

Yet the techniques Mugabe
explored in vilifying lesbians and gays-depicting them as a group outside the
scope of rights, stoking public fear and loathing, and eroding the rule of
law-have since found new victims. Mugabe has attacked peaceful political
opposition both through trumped-up legal charges and extralegal violence. He
has supported the extrajudicial seizure of land, and has incited and defended
violence against both the white farm owners and their African employees. He has
undermined the independence of the judiciary; he has conducted, and triumphed
in, an election in which intimidation was rampant. Increasingly, state policy
in Zimbabwe has been voiced in demagogic speeches, not in democratic law, and
carried out not by delegated agents but by armed gangs.

President Nujoma of Namibia has
described gays and lesbians in terms as violent as any Mugabe used. Yet, by
contrast to Zimbabwe, civil society stood up to President Nujoma from the
start. Human rights organizations in Namibia immediately analyzed and answered
attacks on gays and lesbians as a challenge to the principles of rights. The
National Society for Human Rights in Windhoek described Nujoma's rhetoric as an
indication of emerging authoritarianism in Namibia. "The move appears to be a
tip of an insidious, much wider and protracted strategy spearheaded by and or
run from State House and such campaigns are apparently aimed at stemming the
tide of a rapidly growing civil society in Namibia," the organization said.

The official vilification of
groups within Namibian society has also progressed beyond homosexuals. Nujoma
has attacked independent media, political opposition leaders, women's rights
activists, and foreigners. The small but vigorous human rights organizations
within Namibia, however, continue to condemn both Nujoma's outbursts and the
social divisions they incite.

Zambia-where a coalition of trade
unions, intellectuals, and activists displaced the almost three decades-old
Kaunda government, only to find that its successor showed the same
authoritarian tendencies-provides another illustration. The administration of
Frederick Chiluba (1991-2001), implementing deeply unpopular economic policies,
found the Mugabe model an attractive prescription for boosting its flagging
support. Demonizing homosexuals-to which it devoted several months in
1998-provided a useful distraction, and a convenient way of gaining political
credit with both Christian churches and rural traditionalists. Yet it
confirmed an indifference to rights protections that steadily characterized how
the government answeredother challenges to its political control.

These examples are telling. They
reiterate that an assault launched against one group may signal an erosion of
the rights of others. Yet they also suggest that the stigma attached to sexual
nonconformity can be a test of democratic process¾a
measure of the latitude it offers political as well as personal dissent. The
condition of the most vulnerable people and the most marginalized identities in
a society should serve as a barometer of its openness and civic maturity.

For Zimbabwe's government, verbal
fusillades against homosexuals proved the opening shots in a violent campaign
against all independent social movements and any organized opposition.
Meanwhile, for Namibia's NGOs, defending homosexuals was not a "private" issue
but a crux and condition for defending civil society itself. That government
and those organizations grasped the same insight. Affirming the equality of
lesbian, gay, bisexual, and transgender people means negating the state's claim
to ironclad control over the person, as well as over what can appear or be
expressed in the public sphere. It is a step toward developing African
democracy.

A third context for this
report involves the question of identity¾of
where terms such as "gay" and "lesbian" come from, and what, in an African
context, they may mean.

Unable to protect their
populations against the public health disaster generated by HIV/AIDS, as well
as political and economic crisis, southern African governments have fallen back
on the language of protecting "cultural authenticity." Ironically, the quest
for such "authenticity" often takes up the tools of colonial oppression.
Politicians in Zimbabwe, Zambia, Botswana, and Namibia all defend archaic
sodomy laws as bulwarks of integrity against Western incursions.

Yet the laws themselves are alien
to any "African culture." They are colonial importations-brought in by British
and Dutch settlers, modeled on European codes, but enforced with particular
intensity against "native" sexual conduct which colonials, always both prurient
and puritanical, saw as exotically unrestrained.

And arguably, it is the Mugabes
and Nujomas of southern Africa, purveyors of the idea that homosexuality is
"un-African," who have helped create the identity of the "homosexual" in the
region.

Terminologies for sexual conduct
and experience are multifarious. (A glossary of some key terms as we employ
them can be found at the beginning of this report.) Many common terms are of
surprisingly recent coinage. And clearly many such labels would neither be
recognized nor accepted by all the people they are intended to describe-or by
all the people who face discrimination because of the description. Many men
who have sex with men, in Africa or elsewhere, might not even know the terms
"homosexual" or "gay." A biological woman in Zambia who regularly wears men's
clothing may consider herself a "hermaphrodite" or a man-and might reject the
term "transgender" with incomprehension.

This is more than a matter of
translation. The concept of "sexual orientation"-as a way for people to cement
a public identity built around the sex of the person for whom they feel desire-is
unfamiliar to many cultures. In some situations, including many studied in
this report, women may think of themselves instead in terms of how they
correspond or not to "feminine" codes of conduct or appearance. In some
situations, including many studied in this report, men may similarly see their
looks or dress or mannerisms as defining them more than their desires-or may
see the sexual role they play (as penetrator or penetrated partner in a sex
act) as more significant than the sex of their desired object.

It is clear that
homosexual conduct-desire for, and erotic acts or emotional
relationships between, people of the same sex-has always existed throughout
Africa, as everywhere in the world. Yet homosexual identity, and the
concept of "sexual orientation," have not. Those concepts (as Michel Foucault
affirmed, and historians have detailed) developed in particular, Western
contexts-as ways of interpreting the fact of homosexual conduct, and attaching
individual as well as social meaning to it.

This does not mean that people
who adopt the label "homosexual" in non-Western cultural settings are somehow
"inauthentic." No one receives an identity-social or familial, as "son" or
"chief," for instance-in pristine and undiluted form from society or tradition;
it always takes on personal and internal meanings, as well as shadings from the
social surroundings and the historical moment. Similarly, people who identify
as "homosexual" or "gay" or "lesbian" in a cultural situation where the term is
new do not merely adopt an unbroken set of imported associations. They
creatively adapt the term and its meaning to their own conditions and their
cultural inheritance.

The rhetoric of a Mugabe or a
Nujoma has given many men and women experiencing same-sex desire in Zimbabwe or
Namibia a name for themselves. They do not take the terms "homosexual" or
"lesbian" or "gay" from a foreign cadre of cultural corrupters; they take it
from the words of their political leaders. In this sense, Mugabe and Nujoma
are indeed "promoters" of "homosexuality" in their societies.

Yet the people who assume this
identity and name use them for purposes rooted in their own place and time. In
particular, in interviews with numerous men and women throughout southern
Africa, it became evident that many defined their sexual and emotional
desires, and the intricacy of identity based on those desires, not as a matter
of "sexual orientation," but rather as one of gender. They experienced
themselves as defined not so much by whom they desired, as by how they appeared
and acted.

Men attracted to men, and women
attracted to women, built their identities less around that erotic need itself
than around their crossing of culturally stipulated boundaries between
masculinity and femininity. Their self-images derived from defying convention
and asserting uniqueness by flouting, in their everyday dress and conduct,
expectations of what a "man" or "woman" should be. They deployed terms such as
"gay" or "lesbian" strategically, as ways of becoming recognizable and visible
to one another (and, sometimes, to the international community) and creating a
subculture where people could turn for safety and self-defense. Yet many
believed that they faced discrimination and hatred not because people imagined,
and loathed, what they did sexually-but because people looked at them and saw a
man refusing to be a "man," or a woman refusing to be a "woman."

That the identity means something
different does not make the discrimination less real. As IGLHRC has elsewhere
written,

Any group identity
is subject to contest and continual redefinition; yet arguments, whether
external or internal to the group, about the meanings of key terms in no way
mitigate the reality of hatred or the ubiquity of unequal treatment. Racism is
no less dangerous because the meaning of "race" has been questioned or
reconfigured by scientific or political discourses. Anti-Semitism does not
abate because Jews and anti-Semites alike may argue the definition of a Jew….
The fluidity of identity neither constrains prejudice, nor palliates it.

In fostering hatred toward people
called "gays" and "lesbians," Mugabe and Nujoma also further a suffusive
suspicion in which families, neighbors, co-workers, and police are all alert
for the tell-tale signs of non-conformity that they equate with guilt.
Gestures become giveaways. Girls and boys and men and women who fail to adhere
to rigid norms dictating how they must walk, talk, dress, and act, find a name
waiting for them, an interpretation ready for their idiosyncrasies, and an
identity poised to be imposed-one they may or may not wish to claim. In effect,
they are condemned as much for their self-expression as for their presumed
"sexual orientation."

Where comparable violations of
the freedom of expression happen in other contexts, human rights activists
respond. When repressive governments discriminate against women by imposing
and enforcing dress codes, we recognize that the freedom of expression is at
issue, threatened by unwarranted control of personal choice in how the body is
presented and seen. Yet many human rights activists find their sympathy
exhausted when the acts of expression being punished fall outside a gendered
norm-when females dress or act in a way which defies general definitions of
"femininity," or when males flout a socially imposed codification of manhood.
When employers fire them, when the police arrest them, when their communities
reject them, the victims themselves are often blamed for wanting to dress and
express themselves outside those rigid norms.

This silence leaves the field of
public life to the voices of political leaders who incite hatred in order to
institutionalize intolerance. The silence and the ensuing violence must end.

C. Brief Recommendations

The campaign of hate in southern
Africa raises basic questions. Those committed to the defence of rights must
decide whether the promises in treaties, and the commitments made by civil
societies, are in fact universal-or whether marginalization, moral particularism,
and stigma can exclude unpopular individuals and groups from their scope.

Amid armed conflict, the HIV/AIDS
pandemic, the collapse of health care and educational systems, and inequalities
within countries and among continents that defy every principle of social
justice, the consequences of political leaders vilifying marginalized groups
may seem small. They are not. These attacks serve as a political distraction
from urgent social and economic needs. They divert debate away from reaching
solutions, toward seeking scapegoats. They strike at communities' capacity to
accommodate diversity and accept change.

Finally, left unchallenged, they
subtly but inexorably reduce rights protections back to the level of a
popularity contest. Preaching that dignity is denied those whom a consensus
deems despised, they make freedoms depend not on the sense of a shared humanity
but on opinion polls. Discrimination is by definition not directed at those
whom a society wholeheartedly embraces and respects. It is aimed at those
reviled and rejected, made vulnerable by stigma. And official intolerance is
most dangerous when the contempt for its objects is most generally shared.
State rhetoric then helps make hatred appear an ordinary, accepted, expected
part of public life. Tolerating those first attacks creates a climate in which
attacks on human rights escalate and spread. Politically motivated intolerance
toward minorities is often just the initial salvo in an assault on the
fundamental principle of equality and respect for the inherent dignity of all
human beings.

Southern African leaders must
reverse the trend toward division, discrimination, and abuse. Human Rights
Watch and IGLHRC call on states and state officials to:

·refrain from statements promoting intolerance and from inciting
discrimination and abuse;

·repeal laws, including "sodomy laws," which violate human rights,
including the rights to privacy and freedom of expression;

·change or repeal other laws which discriminate on the basis of
sexual orientation or gender identity, including laws on rape and domestic
violence, or laws which deny access to marriage and related benefits to
same-sex couples; and

·enact positive protections against discrimination, including
discrimination based on sexual orientation and gender identity.

It is not enough for states to recognize
rights. They must be realized. Paper protections must be made
understandable and accessible even to the most disempowered populations.
States, including South Africa, must turn existing constitutional promises into
law, policy, and practice. State officials themselves must be trained to
implement protections fully and fairly. Human Rights Watch and IGLHRC call on
states to:

·publicize and promote awareness of rights protections and how to
use them;

·create and allocate adequate resources to accessible forms of
remedy for human rights violations, with mechanisms empowered and informed to
address the specific needs of vulnerable populations;

·ensure that legal representation and legal remedy are economically
and practically accessible to everyone; and

·train state officials, particularly throughout the criminal
justice system, in human rights and non-discrimination, and in sensitivity to
gender and to minorities and vulnerable groups.

Finally, civil society has
responsibilities as well. The examples of Botswana, Namibia, and South Africa
show how human rights activists willing to defend the most marginalized members
of society also safeguard the basic institutions of democracy. The decay of those
institutions in Zimbabwe shows the dangers of inaction when intolerance first
appears. Human Rights Watch and IGLHRC call on civil society actors, and
particularly human rights movements to:

·speak out whenever state officials incite or practice discrimination
or abuse; and

·seek out marginalized and stigmatized groups, and work to bring
their concerns into the mainstream of human rights and other social movements.

Detailed recommendations can be found at the end of this
report.

II. The Spread of Homophobic Rhetoric in Southern
Africa

This chapter identifies the
leaders who helped, and some who hindered, the spread of homophobia in southern
Africa-and records the words they used to do it. The rest of this report
explores the consequences.

A. Zimbabwe: From Book Fair to Book Burning

It started with a celebration. On
August 1, 1995, the Zimbabwe International Book Fair (ZIBF) opened in Harare.
In the twelve years of its existence, the event had become a centerpiece of
African intellectual life, an opportunity for writers, critics, and publishers
across the continent to converse. The theme of the 1995 fair was "Human rights
and justice."

More was inaugurated than the
fair itself. A campaign of intolerance began which has continued for over
seven years.

On July 24, the fair's
organizers-an independent trust-had received a letter from a government
official condemning the decision to allot a booth to a small human rights
organization called Gays and Lesbians of Zimbabwe (GALZ). "The Government
strongly objects to the presence of the GALZ stand at the Book Fair which has
the effect of giving acceptance and legitimacy to GALZ," the letter read.
"Whilst acknowledging the dynamic nature of culture, the fact still remains
that both Zimbabwean society and government do not accept the public display of
homosexual literature and material…. In the interest of continued cooperation
with the Government, please, withdraw the participation of GALZ at this public
event."[1]

The panicked trustees asked GALZ
to remove itself voluntarily from the book fair; the organization refused.
Founded in 1989, GALZ had served to network and support a small, closeted
community of self-identified gays and lesbians. Initially most of its
membership was white; now it was trying to reach out to a broader community.
This meant raising its public profile. GALZ had hoped the fair would be a
chance to do so safely, by distributing information about its own work, about
homosexuality, and about human rights.

As the fair trustees later
explained, they "were faced with a very difficult and painful decision … we had
to face not only withdrawal of state participation and support but also the
very real possibility of further state action or disruption of the fair
itself. With great reluctance and acting under severe constraint, we withdraw
acceptance of GALZ's participation."[2]

Zimbabwe's president, Robert
Mugabe, opened the book fair on August 1. The censorship had already drawn
outrage from some prominent participants. Nonetheless, Mugabe made it the
major theme of his speech. He painted homosexuals as people who flaunted their
sexual conduct shamelessly; he effectively identified the book fair stand as a
public sexual act. "Human Rights and Justice," said Mugabe, was an issue which

has occupied the attention of the
governments and people throughout the world in increasing measure over the past
decade … My government is committed to the respect of human rights, and
striking a practical balance among the rights of the majority versus those of
minorities and the individual….

Freedom, however, is not a
selfish, one way street….. The greater the freedom one enjoys, the greater the
responsibility one owes the community which bestows that freedom….

Let me give an obvious example of
a taboo here, but one which is universally recognized. While, between a married
couple, sexual relations are not only permissible but expected, such relations
should, however, never be seen to occur in public, for example in streets or
public parks. No married couple could be heard to argue that because they have
a legal right to practice sex, they can do so anywhere. This is because we all
accept that the intimate nature of such relations demands privacy.

Supposing those persons who
believe that the denial of their alleged rights to have sex in public is a
violation of their human rights formed an association in defence and protection
of it and proceeded to write booklets and other forms of literature on the
subject of their rights. Is any sane government which is a protector of
society's moral values expected to countenance their accessions?

I find it extremely outrageous
and repugnant to my human conscience that such immoral and repulsive
organisations, like those of homosexuals who offend both against the law of
nature and the morals of religious beliefs espoused by our society, should have
any advocates in our midst and even elsewhere in the world.

If we accept homosexuality as a
right, as is being argued by the association of sodomists and sexual perverts,
what moral fibre shall our society ever have to deny organised drug addicts, or
even those given to bestiality, the rights they might claim and allege they
possess under the rubric of individual freedom and human rights, including the
freedom of the Press to write, publish and publicise their literature on them?[3]

Official homophobia was not new
in Zimbabwe. Arrests had long happened, and GALZ members' apartments had been
raided in recent years. Indeed, the state-sponsored press had, throughout 1994
and 1995, carried an increasing number of sensational articles about
homosexuals; in one, the minister of home affairs stated, "We are going to
arrest them. It is illegal in this country."[4]
Mugabe had already condemned homosexuality as "abominable and destructive" in a
speech in early 1995.[5]

Mugabe, first elected in 1980
when Zimbabwe held its first all-race elections, was facing growing opposition
by the late 1990s. To deflect criticism, he turned to the issue of land
redistribution.[6]
He also increasingly blamed the country's affluent white minority for
Zimbabwe's ills. Homosexuality, which the president had discovered galvanized
press and public alike, became an additional tool for discrediting Zimbabwe's
whites. (GALZ at the time was still a largely white organization, itself
significantly hampered by internal racism. It became almost exclusively black
in the following years, partly as a result of Mugabe's vilification-as gays and
lesbians from high-density areas sought out the organization for support amid
mounting community and family pressures, and as many whites left in fear of a
government crackdown.) [7]

In a stream of pronouncements
Mugabe returned obsessively to the question of "homosexuals," "sodomists," and
"perverts." "I don't believe they have any rights at all," he told reporters
after his book fair speech.[8]
Less than two weeks later, speaking on a national holiday, he said that
homosexuality "degrades human dignity. It's unnatural and there is no question
ever of allowing these people to behave worse than dogs and pigs." He told his
listeners, "What we are being persuaded to accept is sub-animal behaviour and
we will never allow it here. If you see people parading themselves as lesbians
and gays, arrest them and hand them over to the police."[9]
And when a group of U.S. members of Congress sent Mugabe a letter of protest,
he told supporters of his ruling party ZANU-PF, "Let the Americans keep their
sodomy, bestiality, stupid and foolish ways to themselves, out of Zimbabwe….
Let them be gay in the US, Europe and elsewhere…. They shall be sad people
here." [10]

Several notes Mugabe struck would
be repeated again and again, by his supporters and by other politicians, in
Zimbabwe and elsewhere. There was the notion that rights have limits, that
some people by definition cannot enjoy them-that the idea of a common human
dignity is incompatible with preserving national or local particularity. If
humanity could not be universal, though, the nation must be uniform: there was
the question of cultural authenticity, the defense of an apparently cohesive
and consensus-founded identity, either country- or continent-wide, against
external invasion or internal differentiation. And there was the very question
of terminology: who exactly were the enemies Mugabe combatted? Were they "gays
and lesbians"; "homosexuals"; or, more archaically, "sodomists" or even
practitioners of bestiality?

One Zimbabwean parliamentarian
resorted to a-seemingly non-standard-dictionary in a subsequent debate:

I looked up a number of
authorities and the sum total of all these definitions is this one. These
homosexuals are people given to social pleasures. This is one definition. The
second definition says these are people given to inordinate pleasure. The
third definition describes them as licentious and this means morally rotten and
promiscuous. The fourth definition describes them as lecherous, this means
lewd, unchaste, base, and given to debauchery….

What is at issue in cultural
terms is a conflict of interest between the whole body, which is the Zimbabwean
community and part of that body represented by individuals or groups of
individuals.-The whole body is more important than any single dispensable
part. When your finger starts festering and becomes a danger to the body you
cut it off. -The homosexuals are the festering finger.[11]

Controversies over GALZ's
participation threatened to become a regular feature of the book fair. In
1996, GALZ again applied for a stand. The fair trustees promised to resist
government pressure; the government promised not to apply it. A week before
the fair began, however, the Ministry of Information announced a government
order barring GALZ from appearing-"to protect and guarantee the cultural health
of the country from possible erosion."[12]
The banning order did not actually appear in writing. GALZ therefore continued
to plan on participating. However-anticipating how the Mugabe regime would
deal with other political opponents in future-shadowy threats of mob action
surfaced. A leader of a "student group" was quoted in the government press as
saying,

We are ready to raze down the
stands and go to jail. Our actions will be for a noble cause. We want to
protect the values of our culture. The essence of the fair should be exhibiting
what the country has achieved and can offer in literal arts, and absolutely not
homosexuality.[13]

At a preliminary conference on
national book policy, noisy demonstrators protested the book fair's trustees.[14]
Finally, the day before the fair opened, the chairman of the Board of Censors
issued a hastily written order to the trustees, prohibiting GALZ from
appearing, "based on 17(1) of the Censorship and Entertainment Control Act"-a
provision allowing the state to ban any exhibition or entertainment which is
"undesirable" or likely to cause "breaches of the peace, disorderly or immoral
behavior." The order indicated that the trustees as well as GALZ members could
be jailed if GALZ appeared.

The book fair trustees stated
they would comply. However, GALZ rapidly sued the government, saying it was
standing up "not just for gay rights but for the holistic principle of freedom
of speech, which applies to all individuals and communities in this country."[15]
On the second day of the fair, the Harare High Court set aside the government's
ban. The judge held that the government could not censor material without
examining it first.[16]
GALZ had taken its stand in court. Now it took over its stand at the fair.

However, hostile crowds menaced
the exhibition. According to a GALZ statement,

On the second public day …GALZ
was forcibly prevented from taking up its position at the Fair because a
violent mob, led by Public Prosecutor Herbert Ushewokunze, descended on the
GALZ stand. The Public Prosecutor stated that he and his followers represented
"the People's Court" and that they "did not care about High Court Rulings."
This provided concrete evidence of a direct link between government and the
violence against GALZ.[17]

GALZ left its stand symbolically
empty until the last day of the fair, when they took up a position at the
margins of the exhibition ground-so as to be able to escape if violence
recurred. It did: at mid-day, reports came that a mob was approaching the
fair. GALZ members left; a small book burning followed. According to the organization,
"The mob trashed the stand and tried to burn remnants of the literature around
the stand."[18]

Other nongovernmental
organizations (NGOs) were mixed in their responses to the GALZ controversies.
When, in 1997, a Zimbabwean politician launched a campaign to have homosexuals
whipped and castrated, a leader of the Catholic Commission for Justice and
Peace, a human rights group, spoke out against him.[19]
Others were more tepid.[20]
Indeed, the government adeptly used the issue to divide civil society. In 1997,
GALZ joined the "Sixteen Days of Activism" campaign, a coalition of
organizations drawing attention to rights violations against women. The
state-controlled Zimbabwe Broadcasting Corporation withdrew prime-time radio
and T.V. programming it had offered the coalition, accusing it of being "a
front for GALZ." Other members of the campaign distanced themselves from GALZ,
saying the group "should first resolve its difficulties with government before
involving itself in coalition business." GALZ eventually withdrew from the
campaign.[21]

Many of Zimbabwe's churches
joined in denouncing homosexuals. In 1996, campaigning for re-election-and for
the votes of church members-Mugabe had specifically appealed to pastors to
stand with him in condemning homosexuality.[22]

In 1998, the eighth general
assembly of the World Council of Churches (WCC) was due to be held in Harare, a
much-anticipated publicity opportunity for the regime. The assembly would
include a "Padare" or public space for discussions and exhibitions by
accredited groups and NGOs. GALZ applied to participate. Even two years
before the assembly began, however, local churches made it clear they would
oppose GALZ's presence. At a 1996 press conference announcing the upcoming
assembly, Anglican Bishop Jonathan Siyachitema, president of the Zimbabwe
Council of Churches (ZCC)-the hosting organization-used the occasion to
denounce homosexuality: "We are not going to allow, as a Christian body, gays
in our council and destroy that which we cherish: our culture," he said.[23]
He added, "if people want to masquerade as homosexuals" at the assembly, "we
declare that the law must take its course."[24]

Not all church members agreed.
Ecumenical Support Services, a progressive lay body within the Anglican church,
sponsored GALZ's application, and on that basis the WCC initially approved it.[25]
As word that GALZ might actually appear at the Padare spread, however, local
churches mobilized against it. A group called Concerned Christians began
circulating a petition to bar GALZ.[26]
Bishop Siyachitema again took to newspaper columns, stressing the opposition of
the ZCC: "We feel that Zimbabweans should not be coerced into a practice that
is alien to them."[27]
The Evangelical Fellowship of Zimbabwe said, "the WCC is putting us to shame,
when our politicians are the ones who have to preach to the church that
homosexuality is wrong."[28]
By July, over twenty Protestant churches had stated their objections. The
press whipped up outrage. One writer declared, "Christianity the world over has
been slowly accepting such evils like homosexuals in their denominations
because Christian denominations are dividing themselves endlessly…. We expected
their representatives to stand for justice, that is to represent the views of
the majority of this country."[29]
A state newspaper editorialized that "the majority on a daily basis silently
looks away to accommodate these sexual perverts as they go about their
pastime. But for them to want to propagate their 'faith' at conferences is
stretching people's patience a bit too far."[30]

The WCC itself faced internal
rifts on the issue of homosexuality. Some members, particularly in Europe and
the United States, pressed for an open discussion of sexual diversity; many of
these wished to move the assembly to another country, in response to Mugabe's
rhetoric and human rights record. Other member churches, particularly Eastern
Orthodox ones, were determined to exclude homosexuality from the assembly's
agenda, threatening a boycott if the debate took place.[31]
The WCC was clearly unwilling to defend an embattled gay group, and in the end
moved to eliminate GALZ's potentially divisive presence, which it knew would
spur such a debate through publicity alone.[32]
It told GALZ that an endorsement from a lay institution was insufficient. To
participate, it needed the support of a bona fide church.

No church in Zimbabwe, and none
in neighboring South Africa, was willing to take up GALZ, in the face of the
militant opposition of politicians and the ZCC. The organization was finally
denied accreditation, though it was able to bring some members into the Padare
under the auspices of a sympathetic human rights NGO.

"Animals in the jungle are better
than these people because at least they know that this is a man or a woman,"
President Mugabe said in a 1998 speech.[33]
In the same speech Mugabe criticized the independent media: "In Britain you
will never find a paper that speaks bad about that country; why then in
Zimbabwe do we not adopt a common ideology?"[34]
Mugabe grew more and more dependent on his own stable of state-controlled
media, and increasingly the work of harassing GALZ was left to them. The Herald
and its sister paper, the Sunday Mail, both state-controlled,
steadily tried to embarrass the NGO.

In May 1998, for example, the Sunday
Mail published a front-page article accusing GALZ of running a brothel from
its office, as well as showing pornographic videos. (At the time, GALZ was able
to rent premises in a low-density area of Harare. There, it offered
counselling services for people dealing with issues of sexuality and of HIV,
along with a resource library and a social gathering-place.) The reporter, who
claimed to have inside knowledge of GALZ's dealings, said the organization
provided sex to foreigners, noting that "After one party I saw some tourists
leaving the centre, accompanied by more than one teenager."[35]
According to Keith Goddard, GALZ's programmes manager, the reporter had earlier
joined the organization undercover, with the mission of finding or fabricating a
scandal to discredit GALZ.[36]

GALZ demanded, but never
received, a retraction. Both the Herald and the Sunday Mail
continued to amass accusations against the organization. One week later, the
Sunday Mail alleged that GALZ members had made death threats against its
reporters.[37]
Two weeks after that, it charged the "controversial organization" of holding
"rowdy parties" featuring "public indecency."[38]
Other headlines proclaimed "Opposition mounts against gays, lesbians"[39]
and "Homosexuality is morally bankrupt."[40]

The allegations began at the same
time Goddard was arrested on blatantly false charges of "sodomy" (described in
Chapter III below)-and helped build animosity toward him and his work in the
public mind. They also came as Canaan Banana, the former president of Zimbabwe
and Mugabe's revolutionary comrade-in-arms, faced trial for "sodomy" as well,
in a well-publicized scandal. (See Appendix, "Before the Law.") Goddard's
arrest and the campaign against GALZ may have drawn attention away from the
embarassing proximity of a "sodomite" to the present president

While the press continues to
pursue GALZ, Mugabe has taken up grander themes. His concern has moved from
the presence of homosexuals within Zimbabwe to visions of external coalitions
against the country. Internationally isolated, he sees constellations of
conspiratorial homosexuals opposing him.. These visions have multiplied since,
in October 1999, Mugabe was subjected to a citizen's arrest by a British gay
activist while shopping in London. Press and government whipped up outrage
against Britain: at a Commonwealth meeting, Mugabe accused "gangster gays" of
working for the British "gangster regime."[41]
He told a meeting of traditional leaders in Zimbabwe that Britain sought to
promote homosexuality in Zimbabwe: "We are against this homosexuality and we as
chiefs in Zimbabwe should fight against such Western practices and respect our
culture…. Let us fight against the enemy." [42]
He repeatedly accused U.K. Prime Minister Tony Blair's government of being
controlled by homosexuals.

At campaign rallies for the 2002
presidential election, Mugabe emphasized that he had "real men" around him. He
called on Tony Blair to "expose" his cabinet, saying, "I have people who are
married in my cabinet. He has homosexuals and they make John marry Joseph and
let Mary get married to Rosemary…. We can form clubs, but we will never have
homosexual clubs. In fact, we will punish them."[43]

In April 2002 the head of one of
the main mouthpieces of Mugabe's many denunciations, the Zimbabwe Broadcasting
Corporation, Alum Mpofu, was forced to resign. He had allegedly been caught
having sex with a man in a Harare nightclub.[44]
In June 2002, an opposition legislator testified in a court case that he had
heard rumors of an affair between Mpofu and Mugabe's powerful minister of
information, Jonathan Moyo.[45]
With homosexuality threatening to intrude in the highest echelons of Zimbabwe's
government, Mugabe reportedly ordered a "witch hunt" against any homosexuals in
his administration. One South African newspaper asserted that Mugabe asked his
Central Intelligence Organisation, responsible for state security and the
president's protection, to assemble lists of gays in official service.[46]
A source told a Zimbabwean reporter that "The president made it clear that the
world would see him as a hypocrite if he attacked … Tony Blair for having a
cabinet full of gays when these very same people are said to be in his
administration."[47]

Rita Makarau, then a member of
Parliament from Mugabe's ZANU-PF party, and a politician often presented as a
liberal face of the regime, told us in 2000 that

I believe lesbians and gays were
indeed always part of our society. There was not tolerance as such; but a
spirit that if they only kept to themselves we would not interfere. The
problem, you know, is that there is not a culture of human rights in Zimbabwe.
I try to look to the future, to rights that can be interpreted or gained
through jurisprudence. I try to say to people, "give us five years!"[48]

B. Namibia: Obsession and Opportunism

Mugabe's statements drew
international condemnation, but also international imitation. In neighboring
Namibia Gwen Lister, publisher of the Namibian, the country's main
independent press organ, remembers how startled she was when homosexuality
became a political question there, in the months after Mugabe exploited it.

Many people were a bit confused
at the time: it's years after independence, we've never heard a word about
these things, why suddenly is this becoming an issue? If I'm asked the
question, I think it's really opportunistic, I think at times it's a question
of finding a scapegoat when things go wrong.… Don't forget, to a very large
degree, the people they are speaking to are in the rural areas, are not
illiterate but peasant folk that they are talking to about these things, and
making it seem as though all these whites from all over the world are coming
here to Namibia to turn black Namibians into gays and lesbians…. If there's
been a huge scandal of corruption then suddenly they'll shout the odds about
gays and lesbians…. It's something that seems to happen in waves. You'll find
right at this time [November 2001] that the gay and lesbian issue isn't on the
national agenda at all. But who's to say that come December when something
else happens, it's not suddenly going to be put right in people's faces once
again? [49]

The first wave started among
lower officials-but, as Lister says, "the trend began with the president.
There's absolutely no question about that…. In order to please the president,
other figures who are not as high on the political spectrum as he join in by
making these noises from time to time."

In October 1995, only months
after the Harare Book Fair controversy, Namibia's deputy minister for lands,
resettlement, and rehabilitation told a reporter that "Homosexuality is like
cancer or AIDS and everything should be done to stop its spread in Namibia."
He urged that gays and lesbians be "operated on to remove unnatural hormones,"
and tied the struggle against external perversion to the liberation struggle:
according to the reporter, he "said he did not take up arms to fight for an
immoral society, neither does he want his children to live in such a corrupt
state."[50]
Soon after, Namibia's finance minister, Helmut Angula, wrote a long article
arguing that "homosexuality is an unnatural behavioural disorder which is alien
to African culture … [and] a product of industrialised society, where there is
plenty of boredom and unbridled materialism, as well as liberalism bordering on
anarchy."[51]

Another wave came in 1998. Late
that year, Minister of Home Affairs Jerry Ekandjo stated in the National
Assembly that he planned to introduce new legislation against homosexual acts.
"It is my considered opinion," he said, "that the so-called gay rights can
never qualify as human rights. They are wrongly claimed because it is inimical
to true Namibian culture, African culture and religion. They should be
classified as human wrongs which must rank as sin against society and God."[52]

No such legislation was ever
introduced. Two years later, however, the minister returned to the subject.
Speaking to a group of newly graduated police officers in October 2000, he
urged them to "eliminate" gays and lesbians "from the face of Namibia," saying
that the "Constitution does not guarantee rights for gays and lesbians," and
that police must take measures to combat all such "unnatural acts, including
murder."[53]
An opposition MP demanded clarification from the minister on the floor of the
National Assembly. Ekandjo answered that "elimination does not only mean to
kill. According to the dictionary meaning, elimination may also mean to
ignore, put aside, and [get] rid of." However, he insisted, "We never had moffies
[a derogatory term for gay or effeminate men widely used in the region] in mind
when SWAPO drafted the Namibian Constitution ten years ago."[54]

Most conspicuously, however,
President Nujoma has periodically weighed in in statements closely echoing
Mugabe's, with sometimes vague, sometimes ominously specific threats. In
December 1996, Nujoma declared that "all necessary steps must be taken to
combat influences that are influencing us and our children in a negative way.
Homosexuals must be condemned and rejected in our society." [55]
In the ensuing controversy-with the feminist organization Sister Namibia
strongly criticizing the president's remarks-the ruling South West Africa
People's Organization (SWAPO) party swung strongly behind its leader,
effectively making homophobia a political platform in Namibia. In what
observers called an "unprecedented" move, the party issued a statement
supporting the president, threatening his opponents, and vowing to "uproot"
homosexuality:

It should be noted that most of
ardent supporters of this perverts [sic] are Europeans who imagine themselves
to be the bulwark of civilization and enlightenment …

If there is a matter which must
be dealt with utmost urgency, it is the need to revitalise our inherent culture
and its moral values which we have identified with foreign immoral values.
Promotion of homosexuality in our society scorns many sets of our values…

The moral values of our nation,
as defended by the President, incorporate the fundamental principles of nature
and should not be equated to the vile practices of homosexuals which has a
backlash. Homosexuality deserves a severe contempt and disdain from the
Namibian people and should be uprooted totally as a practice.[56]

Nujoma has repeated his threats
regularly. Later in 1997, he warned the SWAPO Youth League that homosexuals
"should not impose on the human rights of others. The youth should be vigilant
and guard against foreigners who claim to know development and democracy better
than us…. Where were they when we sacrificed our lives during the liberation
struggle?"[57]
In 2000, attending a cultural gathering where a chief spoke in condemnation of
homosexuality, Nujoma urged parents and traditional leaders "to whip" those who
refused to follow cultural norms, "because culture is the fundamental source of
respect and wisdom of any given nation."[58]

A rapid-fire series of statements
from Nujoma came early in the next year. In March 2001, the president told
university students that "The Republic of Namibia does not allow homosexuality,
lesbianism here. Police are ordered to arrest you, and deport you and imprison
you too."[59]
In April 2001, he voiced horror at recent weddings of same-sex couples in the
Netherlands. He warned homosexuals would be barred from entering Namibia: "If
they arrive at the Hosea Kutako Airport, we'll send them back with the same
aircraft-if they are couples or found to be homosexuals." And he added, "The
constitution is being misinterpreted by colonialists who are confused. They
are using the constitution to protect homosexuals and lesbians in an
irresponsible way."[60]
In the same month, he urged traditional leaders and local officials to "see to
it that there are no criminals, gays and lesbians in your villages and
regions."[61]
Later that month he elaborated on the theme at a SWAPO rally, criticizing the
forces of "imperialism" and saying that "The enemy is still trying to come back
with sinister manoeuvres and tricks called lesbians and homosexuality and
globalisation. These are all madness and they claim to be Christians…. They
colonised us and now they claim human rights when we condemn and reject them.
In Namibia there will be no lesbian and homosexual [sic] left."[62]

Also in early 2001, Nujoma told
an interviewer that

Each nation, each people on earth
have their own cultures, way of life. But I detest the way human rights [are]
being put that they [homosexuals] should parade in the streets behaving like
animals…. God created a man and a woman separately. Now we have women marrying
each other and men marrying each other. What is this madness? You must remain
with your cultures in Europe. Don't bring it to Namibia because we are not
going to impose our cultures on you.

When the interviewer, a German-born Namibian citizen, asked
how such comments corresponded to the constitution, Nujoma grew agitated:

That is a constitution that was
made by SWAPO, we are the ones who fought for the liberation of this country
for you to talk about a constitution. What do you know about [a]
constitution? You sided with the enemy here!… Keep away your system of
corruption, anti-God and animal behaviour from the Republic of Namibia.

The interviewer asked again about
"gay and lesbianism" and Nujoma replied:

Keep away from our country,
please. Don't repeat those words. They are unacceptable here. If you want us
to work with you, respect our laws and respect our rights. Those words you are
mentioning are un-Namibian.[63]

The government was prepared to
punish civil society actors for using the "un-Namibian" words. Little more than
a year before the interview quoted above, Nujoma's administration had tried to
discredit the country's largest women's rights organization, for including a
reference to gay and lesbian rights in an advocacy document. Sister Namibia, a
feminist NGO, had organized other civil society actors to collaborate on a
document called the Namibian Women's Manifesto: the goal was to support and
publicize the government's National Gender Policy, turning its generalizations
into specific recommendations relevant to everyday life. The twenty-five-page
document contained only two references to lesbians-one including them in a list
of women to be protected from discrimination; another asking political parties
to state their stances on gay and lesbian rights. Five days before the
manifesto's release in 1999, the SWAPO Women's Council condemned it, saying
that it differed from the state policy in that "they included homosexuality
issues in their so-called manifesto…. They have to find another platform to
address homosexuality and not within the context of gender issues."[64]
The head of the national Department of Women's Affairs said the manifesto "has
no other message than asking women in Namibia to promote homosexuality." State
agencies distanced themselves from NGOS associated with the manifesto; unsubtle
pressures were applied to divide civil society and isolate Sister Namibia.[65]

The controversy over the Women's
Manifesto pitted the ruling party's women's league against independent feminist
organizers from civil society. Sister Namibia is headed by an open lesbian,
Elizabeth Khaxas; the accusations of "promoting homosexuality" were in part
aimed at her work. In 1996, when Nujoma launched his first comments against
homosexuality, he chose a meeting of the SWAPO Women's Council to do so. Even
then, some feminists took this as a message: that respectable women worked
within the state and party, while deviants pursued activism outside.

Civil society has in fact
responded to SWAPO's attacks. From the beginning, in 1995, Sister Namibia had
criticized official homophobia, stating publicly that "We believe that gays and
lesbians should have the same rights as heterosexuals in all spheres of life."[66]
The next year, it boldly condemned the utterances of the president himself,
declaring, "We must stand up now together and speak out against this or any
other kind of hate speech and oppression against any member of our
communities."[67]
When Minister Ekandjo threatened anti-gay legislation in 1998, other NGOs
opposed him. The National Society for Human Rights (NSHR) had produced
gay-friendly educational materials[68];
its president, Phil ya Nangoloh, told us that year, "We do not tolerate
discrimination on any grounds. We think government has run out of issues, and
wants to whip up emotion by talking about gayness. It is behaving
ridiculously, like an elephant chasing a squirrel."[69]

In 1997, Sister Namibia provided
space and helped gay men and lesbians found their own network for support and
advocacy, called The Rainbow Project (TRP). In 2001, when Nujoma threatened
lesbians and gays with arrest and deportation, TRP was able to build a
coalition in response. The National Society for Human Rights issued press
releases and an open letter to the president condemning the threats. TRP called
for a march to affirm the freedom and safety of lesbians, gays, bisexuals, and
transgender people. As word of the march spread, the organizers began hearing
of threats, including a statement by SWAPO Youth League that the "march will
never take place."[70]
Human rights activists in Windhoek supported the original organizers and turned
the rally into a "march for the human rights of all." More than one thousand
people rallied at the event; all the major human rights groups were involved.[71]
Some NGOs expressed private support for the march but declined to participate
because they were dependent on SWAPO for funding.[72]
After the march, President Nujoma asked, "How dare they march in a country we
liberated?"[73]

Still, Ian Swartz, TRP's
coordinator, says that fear has impeded the group's efforts to provide
counselling and support services to people abused or discriminated against for
their sexual orientation or gender identity. According to Swartz, most lesbians
and gay men are so frightened of being identified that they will not come to
TRP's quarters in Windhoek. The group provides almost all their services
through a telephone hotline.[74]

Staff at NSHR have also noted an
increase in attacks on their work, Phil ya Nangoloh told Human Rights Watch in
2001. "Those of us who work at the society have been attacked as traitors, as
spies, and for being un-African. We've also been attacked for promoting
homosexuality because we are critical of the attacks by the president and the
minister of home affairs and by the SFF [Special Field Forces]. We are not
promoting homosexuality, we are promoting human rights." Ya Nangoloh added,
"Gays and lesbians have been in Africa for a long time-we have words in our
local language for gay people. They are not a threat to the president. But we
can't ignore what he's said because it is becoming very dangerous." [75]

Norman Tjombe of the Legal Action
Center (LAC) believes that SWAPO is trying to distract its constituencies from
its failure to address mass unemployment, land reform issues, and a growing HIV
epidemic. "Perverse sex" is a perfect diversion. "In our culture we have
strong ideas regarding men and women. Men are strong-women are submissive. No
other expression of sexuality is permitted. Nujoma knows that most Namibians
are intolerant of homosexuality, so he attacks gays and lesbians. The
government is making attacks on homosexuality a central part of its outlook.
But it will not end with homosexuality-it is to create a culture of
intolerance-a culture that will grow. Either we change this culture and become
more tolerant or it will get worse."[76]

Swartz also expressed concern
about the culture of intolerance the state promotes. "First it was attacks on
homosexuals. Then it became rhetoric about 'purifying' Namibia, which meant
attacks on whites, Afrikaans-speaking Namibians, and then all foreigners and
women who marry foreigners. Also, just like Mugabe, Nujoma is attacking
landowners and the independent media."[77]

Ya Nangoloh notes the attacks are
often personal. Independent judges have been vilified for deciding against the
government: "Individuals have been attacked as traitors, as foreigners,
racists, reactionaries, and imperialists."[78]
Ya Nangoloh himself has been called, in a government press release, a traitor
who "DESERTED the national liberation struggle" and "vilifies the SWAPO
government" to "receive his daily bread from his sponsors." [79]

Gwen Lister of the Namibian also
observes that the attacks on homosexuals are often "personally directed."[80]
Another activist says, "It is a small country and they know who to target. You
mustn't think that they are talking about a group in general. They know who
they mean."[81]

For example, Elizabeth Khaxas and
her German-born partner, Liz Frank, fought a years-long legal battle to have their
relationship recognized for immigration purposes. Although they had lived
together and raised a son, the Ministry of Home Affairs fought to deny Frank a
residency permit, threatening her with deportation. Indeed, in 2000, Home
Affairs Minister Ekandjo specifically commented in Parliament on Frank's and
Khaxas' case-saying mockingly that he would remain opposed to recognizing their
status as a couple "until it is scientifically tested that they can produce a
baby."[82]
The case reached the country's Supreme Court in 2001; in a split decision in
March of that year, it found that a same-sex relationship could not be
recognized by Namibian law, and could not count in favor of the application.[83]
President Nujoma's threat to "deport" lesbians and gays came shortly after the
Supreme Court decision. It was evidently in part meant to menace Frank and
Khaxas.[84]

Henning Melber, director of the
Namibian Economic Research Policy Unit (NEPRU), told us in 1998:

One must look on Namibia as a
traumatized place, perhaps a schizophrenic place. There is an unresolved
history in this country, a history of authoritarian personality structures.
The country has been through trauma, a terrible period of repression and a war.
This produces a typical phenomenon of very dependent individual personalities,
the result of a long history of colonialism and brutality and fear. Such
personalities can easily be mobilized against a minority. And sexuality is
very much bound up with fear.

Then, though, there is a split in
public awareness and political awareness. Repression co-exists with
liberalism. One part of the government will say it wants to eradicate the
enemy. Another part hurries in to say that it wants to give everyone rights.

And the fear of the internal
enemy is tied to fears of external enemies. Homophobic sentiments are mixed
with xenophobic sentiments. It is terrible. And it is depressing.[85]

As Gwen Lister had predicted,
another "wave" of violent rhetoric may have begun. In August 2002 President
Nujoma again mixed homophobia with fear of the outside. Speaking to the Namibia
Public Workers Union Congress, he denounced what he called "British
imperialism" and its anti-Mugabe stance: "Today it is Zimbabwe, tomorrow it is
Namibia or any other country. We must unite and support Zimbabwe. We cannot
allow imperialism to take over our continent again." And he criticized wealthy
countries for tying development aid to human rights, which he linked with
promoting homosexuality.

In Namibia we will not allow
these lesbians and gays. We fought the liberation struggle without that. We
do not need it in our country . . . We have whites who are Namibian, but they
must remember they have no right to force their culture on anyone. If they are
lesbian, they can do it at home, but not show it in public… I warn you as
workers not to allow homosexuality. Africa will be destroyed.[86]

C. Zambia: "Wanting to Help Others Was the Worst
Crime of All"

Zambia, in a few months in 1998
experienced something akin to the hysterical rhetoric about homosexuality which
Mugabe and Nujoma had inflicted on their countries over several years. A
newspaper article describing a single, isolated gay man's experiences provoked
a vast national controversy. Church leaders, NGO officials, students and
professors, and professional politicians all stepped forward to voice their
horror of homosexuality. The vice-president and ultimately the president of
the country joined the condemnations. By the time the furor died down,
homosexuals had been driven even more deeply underground, or beyond the
country's borders altogether. And human rights organizations, and civil
society agents in general, had been stigmatized as being agents of a foreign
agenda.

In July 1998, a young man named
Francis Yabe Chisambisha went to the offices of Zambia's largest independent
newspaper, told them he was homosexual, and asked if they would like an
interview. Reporters leapt at the chance. Chisambisha's self-revelation, his
"coming out," was, as he explained to our researcher later, born of wanting not
to continue in concealment. The Post published Chisambisha's interview,
and photograph, on its first page. The story, which used his full name, spread
over three pages; it concentrated on his sexual experiences. "I'm 25, gay,
with 33 sex partners," said the front headline; an interior header added, "I
am gay and enjoying it …" Buried in the article was a more moving message.
Chisambisha explained why he went public:

Firstly, what I want is to tell
society that this gay thing has been there even before our generation. I want
society to be aware that it is happening in Zambia and there are people who
want to be respected for their choice. It's just that in our African culture,
it's believed to be taboo and hence people do it in hiding," he said. "But the
fact that I am doing it, shows that this practice is there and will continue to
be there as long as man is there. Our friends in South Africa and Zimbabwe and
elsewhere have spoken out that they want their feelings to be respected and be
allowed to enjoy their sexual preferences. That is what I want to do here in
Zambia. It makes me feel bad to be criticized that what you are doing is wrong
when I am not causing harm to the person I am doing it with.

Secondly, Francis said he wants
to form an association so that Zambian gays can fight for their rights. [87]

Chisambisha told us later, "I was
alone and I wanted not to be, and I wanted to help others not to be. I found
out that being alone was legal. Wanting not to be alone was criminal. Wanting
to help others was the worst crime of all."[88]

Chisambisha's confession sparked
a mammoth scandal. The response was instant. The day after Chisambisha's
confession, the Post was already receiving hand-delivered indignant
letters. "There is totally nothing good in being gay that one should feel that
it is an achievement to come out in the open," one read.[89]
The rest of the press scrambled to rival the scoop; when, weeks later, a
headline screamed "Another gay surfaces," it seemed like relief for desperate
reporters.[90]
Homosexuality had almost never been publicly discussed in Zambia; now, for
months, most newspapers carried several stories a week about it. Virtually all
condemned it. The independent Post was willing at least occasionally to
convey Chisambisha's and other sympathetic perspectives; the state-sponsored
press was uniformly negative.[91]

A women's columnist headlined an
account of the controversy, "Homosexuality not new but can be stopped here,"
and pictured advocacy for sexual rights as deleterious to development:

In advanced societies, where
people have attained so much that they have nothing much to do in life, they
tend to turn to such unnatural practices as a pastime. In the first world,
people have achieved so much in life. They have three meals a day, all the
fruits and drinks of any imaginable luxury at their disposal. Since some of
them may not have much work to do any more, they search for hobbies and some,
unfortunately, end up in homosexuality. But in third world countries,
particularly in Sub Saharan Africa, we have so much work to do, we cannot even
afford to think of homosexuality…. The energies being channeled toward
unproductive ventures like forming gay associations could be used for more
meaningful projects like poverty alleviation … The relevant authorities should
be prompted to act against people purporting to enhance their human rights by
engaging in unacceptable practices.[92]

Reporters conducted
"man-in-the-street" interviews, gauging the indignation they helped to foster.
One writer asked Lusakans about the proposal to let gays form an NGO:

A cross-section of the public
interviewed during a random survey seem to be in unison that such a move is
unacceptable and should not be encouraged in any way as it would merely be
perpetuating a vice. The outraged people noted that although homosexual and
lesbian organizations might be in existence elsewhere, it was totally alien in
Zambian society and everything should be done to ensure it did not take off.[93]

Another cited the Zimbabwean situation, saying many Zambians

vehemently oppose the wholesale
importation of Western culture including negative and retrogressive values like
homosexuality, which some say is an insult to the conscience of the human being
for even the low animals, some people interviewed say, know better. President
Robert Mugabe of Zimbabwe who not long ago put up a strong fight against gays
in his country drew a similar analogue and said homosexuals are worse than
animals.[94]

"Homos, lesbians, go to hell!" one piece was headlined:

When the bad news fouled my ears
to the effect that homosexuals, lesbians, I mean the gays, have started walking
the streets with their heads upright, my soul was shaken to its very
foundation….

These homosexuals, and these lesbians,
wonders will never end! Are you telling me they have the courage to waste the
taxpayer's stationery, I mean my stationery, by registering an association with
the Registrar of Societies?

Registrar of Societies, I don't
expect it to happen, but if a lesbian gathers enough courage and exhibits her
ugly face in the confines of your beautiful office for the sinful, shameful
purpose of registering what will sinfully and shamefully be known as the
Lesbians Union of Zambia, give her the boot, particularly on her rump steak,
you know what I mean by her rump steak, don't you? What I mean is, give her
marching orders thus: By the left, quick match! Left, right, left, right, On
the double!…

Homosexuals, lesbians, gays, you
homosexuals, go home, who needs you? Did I say go home? It was a slip of the
tongue. I meant go to Hell. Look, homosexuals, lesbians, gays and the likes of
you, no home is fit for you. . . .

All of you need to be sent to a
special institution to undergo special and thorough examination. Something is
certainly the matter with you.[95]

Few dared raise dissenting
voices. Former president Kenneth Kaunda initially urged Zambians to "cool down
and think about" the question of "how to handle these brothers and sisters."[96]
A furious response from press and politicians ensued; one writer sneered, "It
took just one ill-timed, ill-conceived, ill-advised statement uttered in
probably less than one minute to invalidate… Kaunda's claim to 74.5 years of
wisdom."[97]
Kaunda soon retracted his sympathy, explaining that "They are sick, in my
opinion, and they should be helped to come back to normalcy."[98]

Francis Chisambisha found one
lone defender. On the day after his interview was published, the Post's front
page announced that Alfred Zulu, head of the Zambia Independent Monitoring Team
(ZIMT), wanted to support Chisambisha. "Gay people," said Zulu, "just like
lesbians, are normal people and are entitled to fundamental human rights and
should not be discriminated against."[99]

Zulu's organization had
previously worked principally on election monitoring and on the rights of
traditional chiefs. He quickly, however, became the country's main
spokesperson on the issue of sexual orientation. In part because of
provocative assertions by Zulu about homosexuals' prevalence in Zambia, he was
mocked as well as vilified.[100]
That a self-proclaimed heterosexual man should defend homosexuals particularly
outraged many. At one raucous public meeting, a pastor pleaded with him to
admit that he was gay, so that "society will know how to deal with you."

A forum on the issue organized by
journalism students at a local college erupted into violence, with Zulu as the
target. One press account said that Zulu and a fellow staffer "narrowly
escaped lynching" when the audience grew outraged at their "advocating
homosexuality." Students switched off lights in the auditorium "so that they
could manhandle the two gay advocates"; police intervened to protect them.[101]

Within weeks, Zulu and
Chisambisha had decided to form an NGO, the Lesbian, Gays, Bisexual and
Transgender Persons Association (LEGATRA). Its creation was announced to the
press by ZIMT, and again drew banner headlines. At first it planned to operate
through the parent organization. Ultimately, though, LEGATRA hoped to apply for
legal registration.[102]

The idea of an association roused
still more outrage. The ministers of legal affairs and of information were
followed by the minister of home affairs and a spokesman for the national
police in warning that anyone trying to register such an association would be
arrested.[103]
The minister of legal affairs observed that "the registration of such an
association was in itself a crime." And government spokesman David Mpamba,
calling homosexuality "un-African and an abomination to society which would
cause social decay," called on Alfred Zulu to step down "for misleading the
nation on a moral issue of homosexuality."[104]

The minister of health warned
against allowing LEGATRA to register, stating that "allowing homosexual groups
in Zambia would worsen the AIDS situation."[105]
In Parliament, then Vice-President Christon Tembo announced that people
defending the rights of homosexuals faced jail. Since the penal code
prohibited homosexual conduct, "If anybody promotes gay rights after this
statement the law will take its course. We need to protect public morality.
Human rights do not operate in a vacuum."[106]
And he added, "An association formed to further the interests of homosexuals
can never be registered in Zambia.… [T]hose who will persist in championing the
cause for homosexuality activities in Zambia risk being arrested."[107]
Several gay men who had given their names to LEGATRA went into hiding after
these public threats.[108]

Then president Chiluba finally
addressed the issue in October 1998, in a speech on the thirty-fourth
anniversary of Zambia's independence. Showing palpable disgust, according to
observers, he said, "Homosexuality is the deepest level of depravity. It is
unbiblical and abnormal. How do you expect my government to accept something that
is abnormal?"[109]
He accused Zulu of pandering to foreign funding, and promised that his
administration would prevent homosexuality from gaining a foothold in Zambia.

Chiluba's party, the Movement for
Multi-Party Democracy (MMD), had been swept into power in a 1991 landslide
election victory, propelled by revulsion at the structural adjustment plans
imposed in the 1980s. It was an uneasy coalition of trade unions,
intellectuals, and conservative rural populations. Chiluba quickly found
himself introducing still more rigorous economic reforms.[110]
With prices spiraling, urban support for the MMD plummeted; the adminstration
found itself more and more reliant on rural constituencies, and by extension on
the Christian congregations particularly influential there. One of its first
steps had been to promulgate a constitution declaring Zambia a "Christian
nation." [111]
Now, homosexuality became a convenient occasion for politicians to cement their
alliance with churches, and prove their readiness to defend the religious
identity of the state.

Two days after Francis
Chisambisha came out in the press, Archbishop John Mambo, superintendent of the
Church of God for the Central African Region, said that "homosexuality cannot
be an issue of human rights because it is against the teachings of the Bible."[112]
Later, at a national conference on human rights, Mambo opposed the registration
of gay organizations.[113]
Reverend John Jere of Zambia United Christian Action declared, "Our government
should take a Biblical stand against such evils" as homosexuality.[114]
Zambia is a center for the activities of North American-based fundamentalist
Christian evangelists: their approaches and language were invoked in debates.
One Zambian newspaper simply reprinted materials describing the work of a U.S.
Christian organization which allegedly "converted" gays, Exodus International,
to support the idea that "Christian counselling" could cure homosexuals and
return them to the fold of society.[115]

Other civil society actors almost
uniformly opposed ZIMT and LEGATRA. Many spoke out on the issue despite its
irrelevance to their own mandates. Truckers Association of Zambia (TAZ)
Chairman Charles Madondo said, "I find it strange that anyone can talk of
human rights on somebody doing something not only illegal but also
unChristian. Perceiving such practices as human rights is the same as
condoning adultery or even murder."[116]
The chair of the Zambia Peace Bureau, and the president of the Assocation of
Zambian Private Investigators and Security Organizations, gave statements to
the press condemning homosexuality.[117]
Traditional chiefs, with an eye on their own relationship to the state, weighed
in:

The Tonga Traditional Association
yesterday called on Government to deregister the Zambia Independent Monitoring
Team (ZIMT) and arrest all its leaders who have been campaigning for gay rights
in Zambia.

Tonga Traditional Association
president Dickson Namanza said in Lusaka yesterday that Government was
encouraging lawlessness by not arresting the ZIMT leaders, whose gay rights
campaign was illegal.…

He said chiefs needed to jointly
support Government in its firm stand against the practice whose campaign was
being funded by powerful Western donors.

Mr. Namanza called on Government
to increase its funding to traditional rulers whom he said played very
important roles in issues such as the one ignited by ZIMT and LEGATRA.[118]

Muleya Mwananyanda, information
officer of the Zambian human rights group Afronet, told our researcher in 1998
that "the human rights movement is divided on this issue. It is hard not to
say that this [homosexuality] is a new kind of right for us. And then people
say, 'why should we be fighting for a new right when we don't have our old
rights yet?'"[119]
In fact, ZIMT was the only human rights organization to speak out for
homosexuals. Many other groups expressly working for democracy and human
rights went out of their way to speak against homosexuals. George Kunda, head
of the Law Association of Zambia, told reporters that

under existing laws no one was
permitted to be involved in unnatural acts like sodomy or lesbianism. . . . On
the people who had come out in the open claiming that they were gays he noted
that they risked being prosecuted because it was a crime under the Penal Code.…

"Sodomy or those other things
they are fighting for are acts against the order of nature which are not
allowed by our existing law," Mr. Kunda said.[120]

The executive director of the
Foundation for Democratic Process (FoDEP), a group promoting civic education
and fair elections, accused ZIMT of "encouraging the discrimination against
gays by encouraging them to come out in the open."[121]
The head of Rainbow Monitors, an election-monitoring NGO close to the
government, said that "it is a matter of urgency that the campaign for the
rights of homosexuals and lesbians be nipped in the bud…. The law in Zambia is
very clear on the status of homosexual and other sodomy activities and any
persons engaging in or advocating for sodomy is [sic] guilty of breaking the
law."[122]
Archibald Ngcobo, chair of the Southern African Human Rights Foundation, said
that homosexuality remained taboo in Africa: "We should not even gloss over
that factor. Based on our cultural side it is against African tradition."[123]
And Mike Zulu, president of Focus for Democracy (FOD) told Francis Chisambisha
in a public panel, "You chaps are sick. You need help. You need what I call
sex therapy…. I wouldn't want any of my children to be spoiled just because of
you chaps."[124]

A dean at the University of
Zambia saw homosexuality as defining the limits of human rights:

Rights have to be natural and
anything not deriving its legitimacy from the natural phenomenon can't be said
to be a right. Social irresponsibility has extended to unthinkable levels that
perverts and sadists are busy lurking in the dark bringing ideas against moral
standards in the country all in the name of democracy and human rights…. Every
society has minimum standards of acceptable behavior and those for
homosexuality championing those filthy practices should not be condoned at all.
[125]

Our researcher in November 1998
met with three members of Zambia's Permanent Human Rights Commission,
established by the government in 1997 as an independent monitoring body. The
members emphasized that they could not intervene on homosexual issues. The
chair, Judge Lombe Chibesakunda, told our researcher that "this is not one of
our priority areas of concern. We are concerned with pressing issues, including
poverty and prisons." She stressed the importance of "balancing rights,"
noting that "the rights of children have to be balanced against the rights of
gays." And she condemned the intolerance of Western societies "which do not
take the idiosyncrasies of a given society into account." Reverend Foston
Sakala, another commission member, said, "It is appropriate to consider levels
of development of countries. For us, the timing is wrong."[126]

The controversy eventually¾and perhaps most dangerously¾became one over how civil society was
funded, and the motives of its funders. In September 1998, the Norwegian
Embassy gave a substantial grant to ZIMT, and expressly targeted part of it for
supporting the organization's work with LEGATRA. A new furor erupted when the
donation was reported in the state-sponsored press.[127]
One letter to the editor demanded, "Are donors gay?"[128]
Diplomats of other embassies were questioned by reporters, resulting in the
reassuring headline, "Gay rights no condition for Japanese aid."[129]
An editorial stated, "We have reason to suspect that many of those behind the
alliance formed by gays and lesbians in Zambia are money-mongers who are more
interested in donor funds which … the West has promised them."[130]

In an extraordinary
confrontation, Norway's ambassador was summoned by the minister of foreign
affairs to explain the grant.[131]
Speaking under conditions of anonymity, an official at the Norwegian Embassy
told our researcher,

The Ambassador was told quite
strongly that it was unacceptable for a foreign embassy to intervene in illegal
conduct in this country. It reached the level of a written reply from our
foreign minister to the Zambian foreign minister. I cannot tell you its
contents. But I can tell you that our position generally is, first, that
priorities are set by NGOs themselves, and second, that we were giving support
to ZIMT to sponsor discussion. And we assume that having discussions and so
forth on an issue is not illegal. But I can tell you that this kind of thing
becomes known in the diplomatic community. I believe it will make many embassies
more careful than us about whom they support. And I believe it will make many
NGOs very careful about what they discuss.[132]

Anders Pedersen, first secretary
at the Embassy of Sweden, exemplified this caution. "For me personally," he
told our researcher, homosexuality "is an issue you must defend." But he added,

For us it has been very much a
question of-operating here in Zambia, you must make a distinction between our
values in our society, and what kind of discussion can we have in Zambia…. The
Norwegian Embassy's situation, we defend, we sympathize. But should Sweden
stand with them publicly? No; we have decided it is not the right way.[133]

Western donors and embassies in
Zambia, as in much of Africa, had shifted their priorities since the 1980s away
from funding government projects toward promoting non-governmental
organizations. "Donor-driven democratization," as one Zambian political
scientiest called it, promoted an independent, often critical civil society:
but governments which lost direct aid might well doubly resent the perception
that the funds were channeled to enable their opponents. [134]
With President Chiluba himself accusing NGOs of selling out Zambians to an
agenda set by foreign funders, the controversy over homosexuality threatened to
become one over the legitimacy¾and
"authenticity"¾of civil society itself.

The IGLHRC representative
visiting Zambia in November 1998 found a minuscule gay community in terror and
disarray. Francis Chisambisha had not seen or spoken to his family since he came
out in the Post in July. He had earlier been studying at an
agricultural college run by the United Church of Zambia. After the article
appeared, however, he was barred from taking his exams, and told verbally that
he was suspended from the school. Now he stayed with friends, moving from
house to house regularly in fear of the police. Others associated with LEGATRA
were homeless, expelled by their families who discovered or suspected they were
gay.[135]

LEGATRA was still an illegal
organization. The Registrar of Societies had not arrested ZIMT staffers who
came to present LEGATRA's application for registration; he had repeatedly
turned them away, though, claiming he had run out of forms.[136]
The IGLHRC representative visited the registrar, Herbert Nyendwa, together with
ZIMT and LEGATRA members. Nyendwa confirmed that he could not register the
group, "any more than I could a Satanic organization."[137]

LEGATRA ceased to exist within a
few months. By 1999, most of its members had fled the country. ZIMT also
collapsed as an organization in 2000.

D. Botswana

One explanation for the spread of
homophobic rhetoric on the African continent was offered in 1998 by South
Africa's Zackie Achmat. Achmat, a former anti-apartheid activist and revered
figure in his country's progressive politics, founded his country's National
Coalition for Gay and Lesbian Equality; he has since become a renowned
campaigner for access to HIV treatment. Many African politicians, Achmat told
our researcher,

want to blame the West for everything,
homosexuality included. And they are right, the West is responsible for their
rhetoric, but in a different way than they say. The West, the IMF, the World
Bank, push structural adjustment plans on these countries. And they are
starved and devastated by it. Food is unaffordable, health care unavailable;
educations, opportunities, pensions are all gone. And the populations are
enraged, rightly. And the governments used to depend on one class to support
them when the chips were down: civil servants. Intellectuals used to know that
you emerged from the universities and you had a lifetime government job. No
more: the government jobs are gone, courtesy of the IMF's orders. The civil
servants are all redundant. And so these governments are precarious and
terrified. The people are roused up against them, and there is no one to
support them. Their only real hope is that people die of AIDS or hunger before
they are angry enough to rebel.

And what do they find? They say
"homosexual" and two sorts come running to them: the Christian churches and the
African traditionalists, two groups who usually won't even speak to one
another, come flocking behind the government's banner. Suddenly they have
support. It's a magic word. They think it is a perfect solution. For now.[138]

In diverse corners of Africa,
other countries have heard rhetoric similar to Mugabe's.

In Botswana, discussion of
homosexuality intensified in 1998, when the process of revising the penal code
raised prospects that the sodomy law might be repealed. Political forces
mobilized to forestall the possibility. The ruling Botswana Democratic Party
(BDP) faced an election in the next year, and the opposition tentatively
favored sodomy law repeal. Molosiwa Selepeng, political affairs secretary in the
president's office, told a reporter that "Homosexual practice remains a crime
in Botswana and this reflects the overwhelming majority attitudes in this
country." He said those attitudes found homosexuality "unnatural and
abhorrent." The executive secretary of the ruling BDP said his party "could
not even debate the issue of homosexuality" because it "would shock the
Batswana nation."[139]

The vice-president of Botswana,
Seretse Ian Khama, also spoke out against homosexuals. Asked in Parliament to
clarify the government's position, he said:

Human rights are not a licence to
commit unnatural acts which offend the social norms of behaviour … The law is
abundantly clear that homosexuality, performed either by males or females, in
public or private is an offence punishable by law.[140]

Several traditional leaders
vocally opposed relaxing the penal code, according to a reporter:

Bakgatla Kgosi Linchwe II
lambasted homosexuals as being worse than animals. "To liken them to animals is
an insult," said Kgosi Linchwe.

Bangwaketse Kgosi Seepapitso IV
told the Sun that people who are gay need to be whipped or sent to jail.

Asked whether it was not wise to
ignore homosexual people, Kgosi Seepapitso likened the presence of homosexuals
in society to a house that is dirty and whose owner would be irresponsible if
he did not sweep it clean.[141]

The Evangelical Fellowship of
Botswana, a coalition of evangelical churches, intervened as well, launching
what it called a "crusade" against homosexuality. Its national secretary, Pastor
Biki Vutale, called on "all Christians and all morally upright persons within
the four corners of Botswana to reject, resist, denounce, expose, demolish and
totally frustrate any effort by whoever to infiltrate such foreign cultures of
moral decay and shame into our respectable, blessed, and peaceful country."[142]

Yet in Botswana, as in Namibia,
civil society spoke out against the vilification. In particular, the mainstream
human rights organization Ditshwanelo defended homosexuals from the start. As
early as 1995, it urged decriminalization of homosexual conduct.[143]
It provided space, support, and legal help to a group of gays and lesbians who
eventually founded an organization called LEGABIBO-Lesbians, Gays, and
Bisexuals of Botswana. In 1998, Ditshwanelo organized a roundtable on gay
rights, producing a paper on the subject which it submitted to the criminal law
reform process. [144]
It was attacked for its efforts: Bekezela Nkomo, of the Evangelical Christian
Fellowship, said "Ditshwanelo is infiltrated by gays and lesbians with the set
aim of desecrating traditional African moral values on the altar of perceived
constitutional rights."[145]

However, Anglican leader Walter
Makhulu, archbishop of Central and Southern Africa-and the patron of
Ditshwanelo-offered a different perspective, telling a reporter who asked about
gays and lesbians:

I am intrigued that you never
bother about sexual orientation when people create wealth for your society, and
do wonders in contributing to the upliftment of your community. But somehow,
when it comes [to] these people's sexual orientation, you have difficulties.

Yes, the Bible does say it is
opposed [to homosexuality]. But it was written in its own day and in its own
time.[146]

Some changes have taken place in
Botswana. In late 2000, president Festus Mogae urged the nation "not to be
judgmental" about groups vulnerable to HIV, including homosexuals, prisoners,
and commercial sex workers. [147]
However, Botswana's sodomy law has not only been retained, but broadened to
criminalize sexual conduct between women (see Appendix). In 1998, members of
LEGABIBO met the attorney general-who told them informally that the
organization would never be allowed to register legally, because homosexual
conduct remained a criminal act.[148]
The organization is still extralegal. Religious forces remain divided:
"Despite the Archbishop's efforts, there is still homophobia within the
[Anglican] Church: and other churches simply think the Anglican stance is a
form of madness," one cleric close to Makhulu told our researcher in 1998.[149]

E. South Africa: Signs of Hope

Until 1994, South Africa was
ruled by a white minority government which founded its racist ideology in part
on the Dutch Reformed Church's conservative theology, barring all expressions
of sexuality outside a same-race heterosexual marriage. As the Anglican
archbishop of Cape Town, Desmond Tutu, noted, "The apartheid regime enacted
laws upon the religious convictions of a minority of the country's population,
laws which denied gay and lesbian people their basic human rights and reduced
them to social outcasts and criminals in their land of birth."

Speaking in 1995¾only a few months before Robert Mugabe's
attack on the Zimbabwe book fair¾Tutu,
another hero of Africa's liberation struggles, addressed himself to debates
over the drafting of a constitution to govern the "new South Africa." He
affirmed,

People's sexual nature is
fundamental to their humanity.… These laws are still on the Statute Books
awaiting your decision whether or not to include gay and lesbian people in the
"Rainbow People" of South Africa. It would be a sad day for South Africa if
any individual or group of law-abiding citizens in South Africa were to find
that the Final Constitution did not guarantee their fundamental human right to
a sexual life, whether heterosexual or homosexual.[150]

"Sexual orientation" had been
included in the equality protections of the interim constitution when it was
adopted in 1993¾making South Africa the
first country in the world to include that status in its bill of rights. The
language owed to the extraordinary efforts and advocacy of gay and lesbian
activists; to effective coalition-building with other civil society groups; and
to the openness of the African National Congress, which had taken up gay and
lesbian rights in its "Policy Guidelines for a Democratic South Africa" in
1992.[151]

The interim constitution, agreed
upon by the main political parties, provided the basis for the 1994 elections,
the first free vote in South Africa's history, and for the inauguration of
Nelson Mandela as president. Following the election, the new parliament took
on a dual function as a constitutional assembly, to draft a final constitution.
Though all articles were subject to debate, the final constitution had to conform
to thirty-three "fundamental principles"-including nondiscrimination-that the
parties had agreed would govern the process.

After a two-year discussion
process, and hundreds of thousands of public submissions, only one party in the
assembly, the African Christian Democratic Party, opposed including sexual
orientation among banned discriminations in the final version of the bill of
rights. Importantly, the assembly also agreed that the prohibition on
discrimination should have "horizontal" effect, binding private actors as well
as the state, and that the state should be required to implement this provision
in legislation.

The "Equality Clause," part of
article 9 of the constitution as adopted on May 8, 1996, holds:

(3) The state may not unfairly
discriminate directly or indirectly against anyone on one or more grounds,
including race, gender, sex, pregnancy, marital status, ethnic or social
origin, colour, sexual orientation, age, disability, religion, conscience,
belief, culture, language and birth.

(4) No person may unfairly
discriminate directly or indirectly against anyone on one or more grounds in
terms of subsection (3). National legislation must be enacted to prevent or
prohibit unfair discrimination.

In 2000, in accordance with
article 9(4), parliament enacted the Promotion of Equality and Prevention of
Unfair Discrimination Act, which gives legal force to the constitutional ban on
discrimination and provides mechanisms for redress (see Chapter V).

The influence of this
constitutional protection has been profound. Rita Makarau, Mugabe supporter
and member of Zimbabwe's Parliament, told our researcher in 2000, "Our
homosexuals are always quoting the South African constitution."[152]
The constitution is a rhetoric in its own right, one which not only creates
expectations among its own citizens but resonates beyond its borders.[153]
Two instances show its symbolic as well as substantive power.

Speaking at the Fourth World
Conference on Women in Beijing, China, in 1995, South Africa's then minister of
health, Dr. Nkosazana Dlamini-Zuma, offered the South African example in
support of the (ultimately failed) bid to include "sexual orientation" in the
text of the conference Platform:

After the long history of
discrimination in South Africa, we decided that when we were the government we
would not discriminate against any group of persons, no matter how small their
proportion in the population. To show that we do not have a short memory
regarding matters of discrimination, our Constitution has a non-discrimination
clause and discrimination on the basis of sexual orientation is prohibited.
Though the number of people may be small, we do not discriminate against them,
as we do not discriminate against anyone. We support the inclusion of sexual
orientation in the Platform.[154]

Judge Albie Sachs, veteran
anti-apartheid activist and justice of South Africa's Constitutional Court,
wrote in a concurring opinion to the court's unanimous 1998 decision
overturning sodomy laws in the country-a decision determining that those laws
violated constitutional protections for privacy, dignity, and equality:

The acknowledgement and
acceptance of difference is particularly important in our country where group
membership has been the basis of express advantage and disadvantage. The
development of an active rather than a purely formal sense of enjoying a common
citizenship depends on recognising and accepting people as they are…. What the
Constitution requires is that the law and public institutions acknowledge the
variability of human beings and affirm the equal respect and concern that
should be shown to all as they are. At the very least, what is statistically
normal ceases to be the basis for establishing what is legally normative. More
broadly speaking, the scope of what is constitutionally normal is expanded to
include the widest range of perspectives and to acknowledge, accommodate and
accept the largest spread of difference. What becomes normal in an open
society, then, is not an imposed and standardised form of behaviour that
refuses to acknowledge difference, but the acceptance of the principle of
difference itself, which accepts the variability of human behaviour.

The invalidation of anti-sodomy
laws will mark an important moment in the maturing of an open democracy based
on dignity, freedom and equality. As I have said, our future as a nation
depends in large measure on how we manage difference. In the past difference
has been experienced as a curse, today it can be seen as a source of
interactive vitality….

A state that recognises
difference does not mean a state without morality or without a point of view.
It does not banish concepts of right and wrong, nor envisage a world without
good and evil.… What is central to the character and functioning of the state,
however, is that the dictates of the morality which it enforces, and the limits
to which it may go, are to be found in the text and spirit of the Constitution
itself.[155]

Such language, however, still
leaves unresolved the concrete ramifications of South Africa's promise. To
predicate the morality of states on dignity and equality rather than precept
and prejudice; to make that "interactive vitality" evident as a source of
strength-these remain challenges in South Africa, as elsewhere.

South Africa still confronts
unfulfilled responsibilities in implementing its constitutional protections: to
expand them into the language of law and policy; to spell out their practical
implications and construct new institutions to enact them; to translate them
into accessible and usable words for local communities, activists, and victims
of abuse. Instead, too often, South Africa has let its commitments rest on the
shelf or remain idle in constitutional clauses, unsupported by action. The
consequences of this failure will be explored later in this report.

III. The Hand of the State: Abuse and
Discrimination by State Actors

A. "Fatima's" Story

"Fatima" was sixteen when our
researcher spoke to him in late 2000. His real name is Tendai N.; he took a
woman's name while wearing women's clothes almost constantly between the ages
of thirteen and fifteen. Though he now has reverted to men's dress, most of his
friends still call him by his nickname. Born in Zambia, he grew up in Harare,
Zimbabwe, after his parents moved there when he was a small child. Fatima
says:

I first discovered I was gay when
I was nine years old. I was always too feminine for my family, I walked and I
danced like a girl when I was a little boy. But my mother realized that I was
attracted to men, and she said, I cannot live with a gay in my house. So when
I was nine, she threw me out of the house.

We were living in Glen Nora [a
high-density suburb of Harare]. So I went out from the house and I caught a
lift from Glen Nora to the highway south, and there I just stood on the highway
and hitchhiked some trucks. And one truck stopped and asked my problem. I
said, my mother threw me out of the house and I said, I need a lift to
Beitbridge [the border crossing with South Africa]. So he told me to get in.

We got to Beitbridge and he said,
where do you want to go now? And I told him I want to go to Joburg
[Johannesburg]. I thought in Joburg I would find a place for myself, you
know. So he hid me in the truck and got me across the border without a
passport and to Joburg.

In Joburg, for a year and a half,
I lived on the street. I had no place to stay. Then when I was ten and a
half, I found a job, and I worked in a restaurant for two years, cleaning up
the tables because they would hire a child for that. One time I tried to phone
my mother; she said, I don't want to see you ever again in my life.

I stayed in Joburg for four
years. After a while I lost my job, and then I went back on the street. They
caught me because I had no papers, and I was finally deported back to Harare
when I was thirteen. I phoned my mother as soon as I arrived, and she said,
again, I don't ever want to see you.

Well, then for the first time I
became really sad. Because, you know, it felt different to have no home when
you were so close to home. So I took fifty anti-malaria tablets. Some friends
found me and I was rushed to the hospital and they treated me.

When my mother heard I was in the
hospital, she did come to get me, and she took me home. I said to her: "Who
will accept my situation if you of all people don't?" And so in a way we came
back together.

There is some understanding
between us now. But I don't live with her. Now I stay with Tina [Machida, a
lesbian activist]; she is helping me. But, you know, I want my mother
sometimes, and then I am so sad.[156]

The end of October 1999 was a
period of high exposure for gays and lesbians in Zimbabwe. On October 25, GALZ
representatives were finally permitted to testify before a commission drafting
a proposed new constitution: "Sexual preference," one told the audience amid
extensive media coverage, "is a human right."

Five days later, on October 30,
President Mugabe was in London for what the press later called a "private
shopping trip."[157]
A group of protesters from the British gay and lesbian group OutRage!
surrounded his car. One demonstrator, Peter Tatchell, took the president by
the arm and said, "President Mugabe, you are under arrest for torture."
Subsequently, Tatchell cited not only Mugabe's incitements to homophobic
violence, but murders in Matabeleland in the early 1980s and the torture of two
independent journalists, as justification for a citizen's arrest.

When police arrived, Tatchell
asked them "to arrest President Mugabe, using the powers in the Criminal Justice
Act and the United Nations Convention Against Torture." In the end it was
Tatchell who was arrested, and Zimbabwe lodged complaints with the British
government. [158]

Mugabe's relationship with
Britain, never warm, had deteriorated sharply over British opposition to land
seizures. The president made the London incident an international issue. In
ensuing weeks, he accused the Blair administration of organizing the protest in
an attempt to halt his "land reform" program: "They are even using gangster
gays on us," he stated. "And each time I pass through London, you get people
milling around, trailing you. [You] see that is the gangster regime of Blair."[159]
Zimbabwe's state-controlled press joined in. In the ZANU-PF paper, People's
Voice, one commentator wrote:

This incident was no doubt well
planned…. It was a stone's throw away from M15 headquarters which means
security agents witnessed the whole drama…. To make matters worse the British
government has declined to apologize because it says it cannot be held
responsible for acts of people who elected it into power.

Zimbabweans have their cultural
values and customs. It would be an act of sheer folly for anyone to attempt to
dictate to us on matters of our culture and customs, still worse where it
concerns homosexuality which is alien to our society. Zimbabwe will never
tolerate gays and lesbians, not even under any amount of pressure from some
quarters. Zimbabwe, like other nations as well as churches, opposes
homosexuality because it is against the concept of family and reproduction. We
are at a loss as to why some nations are so fond of gays and lesbians.[160]

"How dare spineless British gays
lay they [sic] dirty hands on our President!" another columnist exclaimed. "We,
the people of Zimbabwe … abhor gays and lesbians. We loathe them in the
deepest sense of the word. Yes, we cannot legalise homosexuality and those who
do not agree with us must leave Zimbabwe aboard the next flight from the Harare
International Airport! Got it, leave this country and leave now!" [161]

Zimbabwe's press reported on the
protest the day after it took place.[162]
Even more rapid repercussions ran through Zimbabwe's security establishment,
however: the Central Intelligence Organization (CIO), responsible for the
president's safety, was deeply embarassed. "If it's true that the president
was physically assaulted, the security personnel would either be replaced,
demoted, or fired for laxity," a CIO source told a Zimbabwean reporter.[163]
Some CIO officers apparently decided to make amends through an immediate, and
vengeful, display of dedication.

Fatima tells the story of what
happened to him on October 31, the day after the London incident:

It was a Sunday. That Saturday
night we had come from the [GALZ] center. We went to a nightclub here in
Harare, a few of us together, and then me and my friend Robert, we left at 6
a.m. We slept for three hours, and then we woke up and it was Sunday morning,
and we said, let's go out.

We went to a place called the
Eight Miles Shopping Center, in Southerton [a suburb of Harare]. We were
sitting in a little terrace. It was about 10:30 a.m. I had put a bandanna in
my hair, which had a kind of a British flag pattern in it.

One of the men near the terrace,
he called me over. "Come here," he said. And then he started saying to me,
"You homosexuals, are you British? You want to make this country like your
country, a gay country. Our president was beaten up in London, and here you
are, demonstrating."

I said, "It is just a bandanna, I
didn't know there was a problem." Suddenly there were four people all over us,
all plainclothes police. They showed us their I.D.s, they were CIO. They
handcuffed me and threw me in a car. They called my friend over, and they said
to us, "You gay people, you should be killed."[164]

Robert, Fatima's friend, was twenty-one at the time. He
remembers:

These men, they all came out of a
blue Peugeot 504 sedan. They called Fatima over. He went over to their car
and took out his I.D. I went over too, to see what was happening. I approached
them and they chased me away. They said, "You are loitering for prostitution."

A friend was near there in his
car, the one who had dropped us there at the shopping center. And I went to
him to protest. And that made them really angry. They came to the car where I
was talking to him, and they grabbed me by the trousers and pulled me to their
car. They said I was under arrest because I was talking to a white man.

They put me in the same car with
Fatima. They were CIO; they showed their I.D.s. The man who had Fatima said he
wanted to kill me. He said they would take me out and dump me somewhere. They
asked me how much money I had. I had Z$30 [U.S.$1.50] in my pocket-I was a
student, I was looked after by my parents. But the idea was, we were gay, so
we must have money, we must be looked after by somebody.

Then a police car came; they
called in a car that was attending an accident scene. They put me in that car
and took me to Warren Park police station. But before taking me, they beat me
first.

They forced me to sit on the
ground outside where Fatima was. They beat me for a long time on the ears and
on the head, till my ears were bleeding. I went to the doctor next day, and I
had a perforated eardrum.

Then the man in the car, a regular
policeman, he took me to Warren Park. At the station, the policemen were OK,
they said, you can go. They told me, don't hang around with these people any
more. I think they were scared because I was bruised so bad. I wasn't
charged, and I didn't pay a fine.[165]

Fatima remembers:

They beat my friend. They didn't
beat me then, but they beat him until he was bleeding. They were slapping his
face till he was bleeding from the ears. Other people were around, and were
just watching, but I heard some of them saying, "They are beating the
homosexuals." Then they stopped another car-the driver was also a policeman-and
put Robert in it. They said to the driver, "Take this homosexual and drop him
somewhere far from town." I thought that would be it, I thought no one would
ever see us again.

Then there was just me left. And
they kept me in the car and drove around with me. They would stop from place to
place, in a field or a parking lot, and beat me, on the chest and the face.
That went on until night, with me handcuffed. Finally the officers took me to
a police station called Braeside, near Queensdale. It was night by then, and
they handed me over to the policemen there.

They threw me into a cell and
took off the handcuffs. There were other prisoners there, six of them. They
said, "Here's a homosexual. You can do whatever you want with him. You can
have sex with him if you want."

For some reason the prisoners
left me alone. I was pretty bruised. I slept there one night. In the
morning, the policemen said I would have to pay a fine, Z$100 [U.S.$4], because
I was doing prostitution.

I phoned Tina; I was staying with
her at the time. She came to pay the fine. They gave me a booklet and said, I
must write down everywhere I go, and the CIO would come and check it.[166]

Tina Machida remembers:

Fatima was staying with me
because he had no place else to go. And the police, they said, what are you
doing with this child? What is your relation to him? I said, he has no family
he can stay with. But they took this book and said to write down everything he
did, keep a record of where he is going. I was frightened, they already have
records on me. I had to ask Fatima to move out.[167]

Fatima was forced to move into the
GALZ center. He says he still flinches in fear whenever he sees policemen or
police cars. His friend Robert says, "GALZ told me I should sue. But a friend
told me it was an especially bad idea to mess with CIOs. So I tried to forget
about it. It's very unsafe here. I am much more careful in straight places
now. It's very unsafe to let anyone know you are gay."[168]

B. Words Hurt: Stories of Police Abuse

Fatima's story shows how the
official language of homophobia, voiced at the highest levels, can translate
almost immediately into violence by state authorities on the streets.

It also shows the background of
prejudice and hatred in community and family which makes people easy targets of
official injustice. Expelled from his home at the age of nine for being "too
feminine," Fatima was a vulnerable target for state repression and revenge.

This chapter and the next will
examine how sexual or gender non-conformity subjects people throughout southern
Africa to violence, repression, and discrimination. Abuse can come from many
quarters. This chapter will recount some of the actions of state authorities,
enabled by the laws already described. The next will examine how people are
subject to violence at the hands of non-state actors in their communities; in
public spaces; and in their families and domestic lives.

It is important to remember,
however, that-as Fatima's story illustrates-these spheres and stories cannot
easily be separated. They combine, intertwine, and reinforce one another, to
enforce heterosexual norms and suppress either "deviance" or dissent.

The most common forms of
day-to-day harassment are simply based on the look or behavior of the victim.
Certain kinds of appearance, gesture, dress become no longer casual but
criminal, no longer innocent but infused with meaning. In southern Africa,
public statements by political leaders decrying "gays" or "lesbians" or
"homosexuals" work to make those identities a vivid presence in the public eye.
Whatever the terms they use or the specific behaviors they abominate, they help
to define and focus attention on-in some cases, to create-a class of people
corresponding to the despised name. Regressive language and an
often-repressive legal system collude and combine. They make gays and lesbians
visible in rhetoric and imagination before they are ever perceptible as a
political or social force. They put the public-and the police-on the lookout
for telltale signs that will betray a person as belonging to one of those
obscure communities.

Those signs vary, depending on
the scraps of information or belief police or public have about "homosexuality"
or "perversion." They may be public displays of affection between members of
the same sex-actions which heterosexuals would take for granted, but which gays
or lesbians learn to suppress. They may be articles of clothing or styles of
dress. They may be as simple as a way of walking, talking, or moving.

Police in the region rarely
consult a lawbook before deciding whom to harass. Yet they can also take their
pick of laws to invoke against the offending person. As discussed below, laws
criminalizing consensual homosexual sex exist in Botswana, Namibia, Zambia, and
Zimbabwe; and police regularly infer private sexual conduct from public gesture
or dress. Prohibitions of "public indecency" or prostitution are ready
instruments to rid streets or sidewalks of unwanted behaviors.

In Namibia, on April 30, 2001,
members of the Special Field Forces (SFF), an elite police unit, moved into
Katatura, a Windhoek township, and began rounding up men wearing earrings. They
were acting in evident response to weeks of mounting homophobic statements by
the president and ruling party. The SFF, indeed, report directly to the
president and are not subject to oversight or accountability by any other part
of the government.[169]
The president had warned homosexuals that "The police are ordered to arrest
you." The SFF took him at his word.

Stallon Shimanda was stopped by
the SFF at a shopping center and asked, at gunpoint, why he was wearing
earrings. Shimanda told the Namibian newspaper:

I pleaded with these SFF guys
that I bought the earrings and they were not stolen. Even when I asked them to
take me to the Police charge office instead of taking my earrings, they did not
want to hear anything else other than demand that I remove them and give them
the earrings…. They claimed that it was an order from the President to take
earrings off any male person. They asked who was I to contradict a Presidential
order.

One of the SFF members, Victoria
Pinias, told a reporter for the Namibian, "Where did you see men wearing
earrings in our Oshiwambo culture? These things never happened before
Independence. Why are they only happening now after Independence?… We will
order any men to take their earrings off or will use force to rip them from your
ear if you don't want to comply."[170]

"These are the people we fear,"
explains Ian Swartz, director of The Rainbow Project (TRP). Since TRP's
founding in 1997, it has received numerous reports of SFF personnel harassing
people on the streets. "They swagger around with machine guns-they harass and
abuse people-activists, political opponents, gays, etc."[171]

Phil ya Nangoloh, of the National
Society for Human Rights, says,"There is no legal justification for the SFF.
They are not part of the police. They are not part of the army. Yet there are
more SFF forces than police, more than four thousand. They are deployed
throughout the country but they have no training in how to handle civil
matters. They answer only to Nujoma and what the president says is regarded as
the law."[172]

The perception that no one can or
will hold the SFF accountable for abuse leaves victims reluctant to come
forward with their stories. For example, five gay men who were beaten on the
street of a rural town in northern Namibia by a group of SFF officers in 2001
called TRP for assistance. They explained that they could not report the
beatings to the police, nor could they go to their homes, because they would
never be able to adequately explain their physical injuries to their families. In
desperation, they fled to Zambia, then finally returned home to Namibia. In
addition to TRP, the men called the Legal Action Center and Behind the Mask, a
South African resource center for lesbian, gay, bisexual, and transgender
people across the continent. However, in the end, they decided not to come
forward publicly, because they feared retaliation by the SFF, as well as
rejection by their families and communities.[173]

Simone, an eighteen-year-old
lesbian who lives in Windhoek, described her fear of the SFF. "I used to feel
safe on the streets, but after the President said to deport us, now I am
afraid, I'm scared of the SFF-it's their job to collect us and deport us."[174]
She also reported that some verbal harassment on the streets now takes the form
of people saying, "Call the SFF, we've got a moffie here."[175]
Another Namibian lesbian told us in 2001, "Everyone is afraid after the
President's remarks: afraid to walk alone, to go into government buildings,
afraid when you see the police or a soldier. I realized that people are
serious about not wanting lesbians and gays in Namibia."[176]
Although many of the lesbians and gay men interviewed for this report said they
felt safer in Windhoek than in any other part of the country, several explained
that they stay home after dark. "The SFF attack at night-I just won't go out
after dark."[177]

Swartz notes, though, that it is
not just the SFF who abuse suspected homosexuals. He took a report from two
women who are lesbians in the northern town of Ondangwa. One evening they went
to a shebeen (township pub) with five gay men. The owner of the shebeen called
the police to report their presence. They were taken to a holding cell and
beaten by the police. Before they were released from police custody, they were
told that they had to change or leave because they "were not welcome here."[178]

In Namibia, "If you are educated
and financially independent, the police and SFF won't harass you," Ian Swartz
explained. "But if you are poor, black and of course if you are a sex worker,
they will harass you and beat you and no one will care." In Windhoek, Swartz
says, transvestite sex workers report steady abuse by government authorities.

Norman Tjombe of the Legal Action
Center confirmed Swartz's account. LAC has received numerous reports of police
harassment, especially of gay, lesbian, or transgender people who are involved
in sex work. "The police harass them, then beat them with sjamboks [rubber
batons]," Tjombe explained. He says that persecution of sexual or gender
non-conformity is not a written policy, but "when it is promoted by someone as
high as the president or minister in charge of law enforcement, it becomes the de
facto government policy."[179]

Two stories from Zimbabwe and
Zambia also indicate how which police there may punish signs of affection
between men. In Zimbabwe, Andrew K. recounts how, in 1999,

I went to a party in Waterfalls
[a suburb of Harare], and I was detained there with a friend after the party.
We went out in the street while the party was going on. It was after dark.
Probably we were touching each other, holding hands, not more. Then the police
came, two or three of them on foot. It was a gay party, so I wonder whether
they were waiting for someone to leave it doing what we did.

They handcuffed us and took us to
the station, Waterfalls Police Station. They said it was because we were
holding each other's hands and being homosexuals. It was because we were
touching each other romantically, I think, like heterosexual lovers; they
couldn't stand that. My friend was taller that I was, so they said to me, "You
are the woman." They wanted me to undress and show I was a man, but I refused.

We spent just one night at the
station; in the morning I had to phone a friend to come and fetch us. He paid
money for the fine, I don't remember how much. They didn't give me a paper so
I don't know what the fine is for. It affected me very much. It made me want
to leave the country.[180]

In Zambia, Aubrey M. reports:

In April 2000, I left a disco in
Lusaka with someone. Of course it wasn't a gay disco, but I suspected this man
was gay, and I was right. We drove for awhile in the man's car and we ended up
at about 4 a.m. in the Northmead area [a Lusaka suburb], parking on a quiet
road under some trees. We started kissing.

A police car pulled up. And one
paramilitary policeman comes rapping on the window. He wanted to know what two
men were doing there together, in the car. He wanted to know if "something"
was going on. You could see that he was really suspicious, and really curious
at the same time.

We were really scared. I thought
fast: I told him we had been in the car with a [female] prostitute, and she had
just left. He looked almost relieved that there was a way out.

Nonetheless, the sight of two men
alone in a car alarmed him. He insisted on taking us to the police station,
getting our names and seeing our I.D.s. At the station he told people he
"almost" had a case of some homosexuals. We had to pay a bribe of 20,000
kwacha [ca. U.S.$10] to get him to let us go. [181]

Even a hairstyle can initiate
harassment. Francis Chisambisha remembers another incident in Zambia, several
months after the furor over his coming-out had receded. Early one evening,
Chisambisha was chatting with two gay friends on a streetcorner in the Ramwala
area of Lusaka, when four policewoman confronted them. "They said, 'We've been
watching you, you've been standing here for some time. Let's go to the police
station.'"

The three were taken to the
police station at the Intercity Bus Terminal. Chisambisha is sure the officers
did not recognize him. "If they had it would have been bad for us. One friend
even had a copy of the LEGATRA constitution in his bag; he managed to throw it
out along the way." At the station, though, police told his friend, who had
long braided hair: "You're the people we have been looking for. You want to
behave like women. Look at your hair! We will lock you up and you'll appear in
court.'" The three were interrogated separately for over three hours, and
freed only after paying a bribe of 8000 kwacha [ca. U.S.$5].[182]

Francis Chisambisha, whose
coming-out in the press provoked months of controversy in Zambia, recounts how
his public identity exposed him to harassment. Chisambisha remained in the
country for over a year after the collapse of LEGATRA and the end of the furor,
staying with friends and relatives in the Kabwata district of Lusaka. He says,
"For a long time I did not have so many problems. My picture had been in the
paper, but it made me look bigger and taller than I am." A strange incident
happened in the autumn of 1999:

I was approached by one of the
ministers, the deputy minister of home affairs [Edwin Hatembo]. He came to me
through two other friends of mine, who knew him a little. They all came to me
together, we met in a bar in Woodlands. The minister said, "You have
challenged the president, are you really gay, did you come out of your own
consent? Don't you know you have challenged the president?" He said they
could give me immunity if I went on national T.V. to confess that I am not gay,
that some people who were challenging the president had used me. He said they
could take me anywhere in the world, they could get me back into school.[183]

Chisambisha refused. He managed
to attend an international gay and lesbian conference in South Africa in the
autumn of 1999; when he returned home, his situation changed.

Strange people began visiting
me. One of them told me he was a police officer; he said, "I want you to be my
friend; tell me about this conference." He visited me a lot. Sometimes he
would leave a message with the cousin I was staying with, to come meet him in a
pub. Or he would just wander in after work, sometimes in civilian clothes.

I was about to go for the night
in November of 1999. It was three days before [former president] Kaunda's son
was shot [on November 4]. Suddenly, six police officers surrounded me and said,
"Where are you going?" They were from a branch of the National Service Squad,
an anti-crime unit. They took me back to the house. They were very
flirtatious with me in the car, rubbing against me as if they were tempting me
for a reason. The people I was staying with came out and the police told them,
"There is no reason for him to be out. Keep him in or we will arrest him."[184]

Some months later, feeling
"watched," Chisambisha fled Zambia and sought political asylum in South Africa.

Non-conforming gender identity or
expression is particularly likely to become a magnet for abuse. "Sexy" is the
nickname of a thirty-one-year-old gay man in Gaborone, Botswana. He remembers
what happened to friends of his in the city in 2001:

These two friends of mine, they
were staying at my house. They wanted to go to this club that allows every
person-they don't discriminate. So they put on those wraps, those sarongs, put
on some high heels and some makeup and went to that club. When they got there,
they had fun with some friends, people were just happy seeing them in that way.

But after that, they went to
another club. Immediately when they got there, people saw them and reported
them to the police. So the police came and arrested them. There was no charge
they could lay to those two guys, so they just used "common nuisance." They
were sent home after they were finished with the police and they were fined 50
pula [U.S.$10].[185]

Chauta, from Lusaka, Zambia, is
twenty years old. At twelve, he realized (he still uses the male pronoun) he
was "a woman trapped in a man's body": he felt "out of place with groups of
guys, whereas with a group of girls I felt free, felt that I could do what I
wanted." He knows of only two other biological men who feel, and dress, the
same way. Recently a friend has helped him contact a transgender group in
South Africa, and he hopes to visit there someday.

When, at twelve, he told his
mother of his discovery, "She was supportive: 'You are still my child.'" Since
fourteen, he has engaged in a kind of cross-dressing, usually wearing very
tight trousers, called "hipsters" in Lusaka, "the kind fashionable women wear.
And I wear these women's long body tops, with low-cut chests. And makeup."

"It isn't quite easy in Zambia,"
Chauta says. "The police say, this kind of thing shouldn't be permitted in
Zambia." He remembers many incidents of harassment. A typical one happened
only a few weeks before our researcher spoke to him:

I was having a drink in Nchilenge
[a town in Luapula province] with my cousin. We didn't know there were cops
there. But this guy in the bar started harassing me because he thought I was a
woman. To get away from him, I left the bar for a while. As I tried to come
back in, I was stopped by two cops. "Why are you dressed like this?" they
said. They said they would take me to the police station, for dressing like
this.

They held me there for three
hours, at the reception. I paid them all the money I had on me to get away; I
knew if they put me in the cells I would have trouble with the men there.[186]

It is in Zimbabwe, where gays and
lesbians have struggled hardest to achieve visibility, that we found the most
widespread accounts of police harassment. In part this reflects the existence,
and success, of GALZ as a resource to which victims of violence can turn, so
that their stories are recorded even if redress is remote. In part, though, it
reflects the mixed benefits of visibility itself, leading as it does to a
heightened awareness of homosexuality, and a heightened threat.

The following stories from
Zimbabwe are examples. They show recurring themes:

·Police attention to-and regulation of-gender norms in behavior
and dress: any deviation from "masculine" or "feminine" expectations can become
a criminal offence.

·The identification of either gender or sexual non-conformity in
public with prostitution-which appears to serve as a catchall category for the
unwanted public expression of sexuality.

·The familiarity of gay activists, or even some "known" gays, to
the police.

These three combine to put many
GALZ members, and others, at regular risk.

1. Tina's story

Chipo (Tina) Machida is a
prominent lesbian activist who has been organizing black lesbians, both within
and outside GALZ, for nearly a decade.

On February 14, 1998, she
remembers, a group of about twenty GALZ activists, both men and women, had
gathered at one member's home in the afternoon, for a Valentine's Day party.
Three policemen knocked on the door: "They said, 'You are making a lot of
noise, is this a shebeen?' And they took down names, and then they took most
of the beer away."[187]
The group then went to a popular nightclub, Sandro's, in downtown Harare.

At about midnight, according to
Machida, six or seven of the group decided to go home. Outside the club, while
they were getting into a car owned by one of them, "three cops in uniform and
three in plainclothes came up. The plainclothes pulled us out of the car. We
thought they were robbers-but they handcuffed us." Machida recognized one of
the uniformed police as having interrupted the private party earlier. "He had
followed us to the nightclub to carry on harassing us."

Two members of the group, Tina
and Wallace M., were arrested. "We were on the executive committee of GALZ at
the time, and that may be why they picked us out." The officers refused to
give a reason for the arrests, or to reveal their own names or numbers. Only
after the two were taken to Harare Central were they told, according to
Machida, that they had been arrested for "public indecency."[188]
Machida says,

At the police station, we told
them, "Why don't you just write what you are arresting us for: for being gay,
instead of making up these other stories? All we did was get into a car to go
home." The officer who interrogated us was waving a gun. He called us names:
He kept asking both of us, "Are you a man? Are you?"He
said, "Our president doesn't like people like you."

Wallace says,

When I was in detention, I was
beaten-on the legs, the chest, everywhere except the face. It was a nightmare.
You fall into the hands of the police and you realize all your talk about human
rights means nothing to them: they can keep you there for as long as they want.[189]

At about 4:45 a.m., according to
Machida, a high-ranking officer whom others called the "Big Chief" came in. He
told the two to pay the fine for public indecency, and go home. "We had phoned
Keith [Goddard, the programmes manager of GALZ]," says Machida, "and he said
not to agree to pay the fine. But we knew they would lock us up until Monday,
and they were threatening to put me in with the men. They told Wallace, you
will be the guys' wife today." Each agreed to pay a Z$60 (U.S.$4) fine.

GALZ pressed suit against the
Harare commissioner of police for unlawful arrest.[190]
The case, however, never reached court. "There was really no guarantee,"
Machida says, "that if I pursue this, I will have protection":

I'm already a target: I don't
want to be cross-examined and have my picture in the newspaper for suing the
police. I would never deny I'm a lesbian. But what will be the consequences of
standing up to the police that way. I have an eight-month-old baby. What will
happen to my baby? They can take it to a children's home if they want.

In January 2000, Machida was arrested again:

It was early evening, I was
coming home from shopping with my friend Elena. It was in Longford [a suburb
of Harare], the bottle shop had just closed, and we had our beers closed in a
paper bag. The police were waiting for us near the shop-three plainclothesmen.

We were arrested and taken to
Braeside police station, then to Central Station. They charged us with
soliciting for prostitution.

It was such nonsense! They
didn't even make a secret that they were doing this because we were lesbians.
The officers kept saying: "You think we don't know you, but you are Keith's
friend, you work for GALZ." And again one of them whispered to us: "You'd
better not stay the night, because we aren't going to put you in the women's
cells, but in the men's."

We were frightened. We didn't
have a cent between us. I phoned a friend to bring some money to pay the
fine-it was Z$100 [U.S.$3]. And they let us go. For us it is difficult to
take the matter further. They will keep targeting you.

2. Romeo's story

Romeo Tshuma is a long-time GALZ
member, employee, and activist. He recalls:

One night in late 1997 I went to
a nightclub with some friends. Or we tried to go. When I was getting out of
the car, a plainclothes policeman came up to us and said something to me about
"impersonating a woman for the purposes of prostitution." Impersonating a
woman? I didn't know what he meant. I was wearing tight jeans and a
close-fitting shirt. The policeman didn't bother my friends-they included both
gay and non-gay people. All of them walked inside. The policeman only stopped
me, showed me his I.D., and said I was guilty. I tried to cry out to my
friends: he seized hold of me and said, "You will explain it at Harare
Central."

He put me in a car. There were
three policemen in the car in addition to him, all in plainclothes. We arrived
at the Central Police Station. They didn't take me to the ordinary holding
area: they hauled me upstairs to a room. The policeman who took me there said
to a sergeant, "Well, is this a man?" And the sergeant said, "Look at you! Are
you a woman? Are you gay?" I said, "I am a man and I am gay. There is nothing
wrong with that."

They tried to get me to take off
my clothes to prove that I was a man. I refused, and they threatened to beat me
up. So I dared them to arrest me and open a file. The officer who arrested me
was named Makoni; he pushed me around a lot, shoving me; he was a very violent
man. But the sergeant in uniform kept asking me questions for four hours:
questions like, "Do you get fucked in the ass? Is it painful? What does your
family say? Do you know this is not acceptable in this country?"

I was arrested around 11 p.m.
Around 4 a.m. they finally let me go, with no charges.[191]

Tshuma was detained again a year later:

In 1998, a friend from Swaziland
came to visit. He was staying with me in the GALZ office. We went out to a Chicken
Inn on Speke Avenue to buy takeaway. Two guys started following us on the
street: plainclothes police, again.

We ordered food and decided to
eat there, so we went upstairs in the restaurant. And the two men followed
us. One of them came up to us and said: "Hello, there, I know you." They
produced police I.D.s and said: "Let's go to Harare Central for some
questions."

I refused. I tried to run away.
I barged out of there and went out on the street: I knew I couldn't get away
from them for good, but I wanted to call GALZ to let them know I was at the
police station, so they would come and pay bail if necessary. After I made the
call I came back and my friend and the police were not there. He had been
taken to the police station.

So I went to Harare Central, and
they were waiting for me. One of the plainclothesmen met me and said, "Come
inside, you ran away." Then he slapped me.

But by then they had interrogated
my friend and he asked if he could call the Swazi embassy, because his sister was
married to a high official there. So the cops panicked. And after the
plainclothesman slapped me, another policeman came up and said: "Don't do that,
these guys are related to the ambassador."

I started screaming and demanding
that they arrest me and open up a file. They refused, and they started
treating me very nicely, till a car from the Swazi embassy actually came to
pick us up. And the cops told my friend, "It was a mistake."

I asked for paper, and I wrote down
the names of the two policemen. But before they let us go, the police took
[the paper] away. They said to us, "Don't do this again!" Do what? But you
know, we actually felt that whatever we were doing was not right.[192]

3. Kuda's story

On January 17, 1998, at about 4
p.m. he was walking through the Montagu Shopping Center in Harare. By his own
account he was wearing "clogs and short-shorts, and a regular T-shirt." He was
stopped by a police officer who identified himself as Constable Machote, along
with two other officers who refused to identify themselves.

Kwashe was told he was being
arrested for "dressing like a woman," although he was not wearing women's
clothes. The police also told him that he "walked like a woman." Kwashe
demanded to know what law he was violating.[194]
In response, the officers physically forced him into the back of a police car.
There, he says,

They called me a whore, a white
man's whore, and all sorts of other things. They kept calling me a woman, they
wanted to know what I had under my shorts. I got very angry.

According to the police, Kwashe
(who is over six and a half feet tall) became enraged and smashed the window of
the police vehicle.

Kwashe was taken to the Harare
Central Police Station. There, he says,

They gathered a bunch of the
police together. They were having a little party. They called me names for
hours, they were really enjoying that, and they spat on me again and again.
They couldn't get over the clothes I was wearing.

Kwashe was detained for over six
hours, and was finally released after being required to pay Z$600 [U.S. $40] in
damages for the broken window. No charge was preferred, however, which GALZ
advisors considered "virtually an admission by the police that he was not at
fault."[195]
Kwashe says, "I know the police watch me since then. Well, let them. I'll
walk the way I want."

4. Dominic's story

Dominic S. is twenty years old, and
lives in Bulawayo. He says:

At Christmas 1999, I went to a
nightclub called Fuse. I had a fight with this guy-he provoked me. When I am
at straight clubs I try to pretend, it's safer that way. I hang around with
girls and I joke with them, flirt with them. Well, this man came over and
said, "You are a poofter: you're gay, I know you are gay. You can't have that
girl. Get away from her." He held up his hand to hit me and we started
fighting.

The security guard threw us out,
but first he called the police. So the police picked us up on the sidewalk
outside, and took us both to Bulawayo Central Police Station. But the other guy
knew what to say. He changed his statement to say, "Dominic was making
advances on me, he tried to sexually assault me." So the police let him go.
But I was detained for three days, and charged with indecent assault.

The police didn't beat me but
they humiliated me. They kept asking me, "Why are you gay? How many white
people do you know? Why are you wearing earrings?"

I was only allowed one phone
call, on the first day. The police had written a document saying I was charged
with indecent assault, and if I could not pay a Z$500 [U.S.$25] fine I would be
held for three weeks. I could only make a phone call after I signed it.
Looking back I guess that paper was an admission of guilt. I had seen quite a
bit of the gay community in Bulawayo, but nothing had prepared me for this, and
I didn't know what to do.

I called a friend, but he didn't
get the message for two days. When he did he came to the police station; he was
told that I was a gay guy who had committed the crime of hitting a straight
guy, and perhaps I had tried to rape him. My friend bailed me out by paying
the Z$500 fine.[196]

Dominic was arrested again in early 2000:

I was with a friend in this place
we ordinarily go to on Sundays to have tea. It's a coffee shop in Bulawayo,
and the guys who work in the place know we are gay and usually tolerate us.

One day a cellphone was stolen
inside the café. My friend and I were sitting there; everyone was being
searched when they were leaving by the café security. It was a private
security firm, called Mills Security.

The security guards came to our
table and said they were taking us to the police. They said, "Gays can do
anything, they are a menace to society. You cannot trust them."

They didn't even bother to search
us, they just said, "We are taking you to the police." I guess they thought if
they could get us arrested it would get them off the hook for having let the
theft take place.

My friend had his cellphone, and
insisted he would talk to a lawyer he knew. So they held him there. But the
café security took me physically and drove me to the police, to Bulawayo
Central. The police there knew me. The sergeant at the desk said, "Oh, this
one again." And he said, "Gay people are always a problem."

I have never in my life been so
ashamed. It is a small town, really; everyone knows me, and I had colleagues
from school who worked at the police.

I didn't answer any of their
questions. They were saying, "You can go to prison for ten years." I was
worried what my father would say, and my mother, knowing I am the only child.
She looks to me to help her in the future but there is little I can do. They
told me they would bring me up for not answering their questions.

They didn't ask me any questions
about the theft of the cellphone. All their questions were about being gay.
"You are wearing a beret-why? You know this sickness is not allowed. Why do
you accept Western culture? We know you gays are being used by white men. You
do it for money." I said: "I am not a prostitute." They didn't believe me.
About twelve policemen gathered as if I were the evening's entertainment,
asking me the same questions. They threatened to take me to the other room,
where they said they tortured people.

I was held for about an hour. My
friend went to talk to the boss of the security firm at the restaurant-Mr.
Mills. He threatened to sue. Mr. Mills called the police and said it had been
a mistake. So in the end they let me go.[197]

As in Kuda Kwashe's case, Dominic
reports that police interpret gender nonconformity as evidence of
criminality. "Even stranger things have happened because of just the way I
walk," he says. In June of 2000,

It was late at night and I was
coming home from a club. I was just walking to where I take my minitaxi, in
the center of Bulawayo. A policeman stopped me and said: "Are you a woman?" I
was so surprised I didn't know what to say. He said, "I am arresting you for
soliciting for prostitution."

Well, there were girls nearby who
were prostitutes. But I finally said, "I am a man." I guess my voice
was deep enough to convince him. "I'm sorry," he said, "I thought you were a
woman. But you should be careful," he said, "you could get into trouble that
way."

5. "Natasha's" story

"Natasha" is the adopted name of
Thema N., a male-to-female transgender person. ("Natasha" refers to herself as
"gay," not "transgender," but uses the feminine gender.) She was twenty-five
years old when our researcher spoke to her in 2000, and was living in Mzilikazi
in Bulawayo.

Natasha's story suggests that
police and prison authorities single out gender-nonconforming people for
particular abuse. It also suggests, however, that she was made vulnerable to
such abuse by previous patterns of social and cultural exclusion. Both society
in general and the law in particular enforce, in different ways, rigid norms of
gendered behavior. The former punished Natasha by making her an outcast: the
latter, by making her an inmate.

"I discovered I was gay at the
age of five," she says. "I used to play with the girls and their dolls; I felt
so feminine that I always used to see myself as a woman."[198]

My family were very understanding
at first. My mother thought that having this girlish boy was just like having
a child who was disabled, and she took it as a trial. I started meeting other
gay people in 1988. There were not many but I did have a sort of community. I
was the most feminine, and now I am a twenty-four-hour drag queen. I have worn
women's clothes since 1987, when I was thirteen years old.

I know four or five other drag
queens in Bulawayo. One is in prison now; the others have gone to South
Africa. We don't fight among ourselves; we are a community amongst ourselves.
Whenever we are together we are still friends, because of what we do.[199]

Natasha left high school at
fourteen, partly, she says, "Because the other pupils made it impossible." She
worked briefly at hair salons: "But even there it is very hard to keep work,
because people think I am sick, being a man biologically." Eventually she moved
into prostitution. "I used to go to South Africa, and there, in Joburg, I
would stand with straight women that would do the same job.. . . Back then they
could tell I was a man, biologically. Now men just pick me, not knowing
whether I'm gay or male or not."

Natasha supports her parents and
a brother on her earnings. Ultimately, she hopes to return to South Africa and
undergo sex reassignment surgery (SRS); doctors have told her the procedure is
illegal in Zimbabwe. Her I.D. still reflects a male identity, which makes it
hard for her to find either accomodation or a job. "In the law they know I am
still a man, and this is Zimbabwe. If you go and ask about these things, they
will make your life very difficult."[200]

Natasha has had many experiences
with police and courts, particularly in Bulawayo, where she is regularly
arrested-usually, it appears, under the provisions of the Miscellaneous
Offences Act, a catchall law used to control prostitution or "disorderliness."[201]
Generally, these end with paying the police-in the form of bribes, or of fines
at Bulawayo Central Police Station; if she has no money on hand, though, a
prison sentence can result. Natasha believes the courts usually treat transgender
sex workers no differently from women sex workers. The police are a different
matter, she says: "They single you out, they really hate you if you are like
me. The bribes are twice as much as for the regular women."

Almost every time I go to the streets
I pay some policeman. The police know who you are, and they come through and
when they see you they take the money. Usually they ask Z$100 to Z$150
[U.S.$3-5] each time. They only make you pay a fine as opposed to a bribe if
they catch you the second time in a night-for instance, the first time a
policeman comes, you bribe him; but if the same or another comes along again,
they have to take you in. Then you spend the night at the station and pay in
the morning. [202]

The first time Natasha was jailed in Bulawayo Central,

I was taken to the cells and I
slept alone in a different cell from the others. I was in the men's section
but alone. They gave me my food alone and I was never allowed to talk to the
others. Even when I was taken to wash, they took me separately and closed the
door and left me in there alone. They were not really trying to protect me:
they wanted to prevent me from sleeping with other men. They thought I would
get at them if I was put with them.

But every time I was in jail the guards
would use us, all the drag queens. They used to say, "You bitches come
here"-if we don't, they will beat us, or force us into doing things we won't
like. They would kick us, or strip us in front of the other men, which was
very painful and embarassing. Sometimes we were never given food, just because
we were homosexual prostitutes. They used to force us, at Bulawayo Central, to
have sex with them.

Sometimes also in the streets, if
you don't have money to bribe them, the police will force you to have sex with
them. And sometimes they will deny you a condom. Sometimes three or more of
them will force you to have sex with them. Then they will rob you, too.
Sometimes the policemen will come to your place to collect the bribes you owe
them. Then they will wait for you to finish your business and take all the
money you have earned. They are like amateur pimps, really. All this has
happened to me many times.

Actually, the thing that hurts
the most, it is strange to say this, but it is the swearing at you. Calling us
"you bitch," "you mother," "you pervert," ngochani [a Shona term now
used, in a derogatory sense, for people suspected of same-sex sexual conduct,
particularly men]. And they do that constantly. You must believe how this
hurts me. I am a human being and I have my dignity.

Natasha spent two months in prison in mid-2000:

The last time I was arrested was
May 5 of this year. I was standing on the street with two other friends like me
[transgender sex workers]. Two guys came, and wanted to pick one of us. Then
two policemen in plainclothes came. They asked us what we were doing there.
We retorted, we were waiting for these two guys… The policeman said we were
loitering. We asked them to give us a fine. They denied it and said, we'll
meet in court.

I was arrested the very same
day. Some other policemen came and picked me up. They just came for me,
because I had spoken up….

Some of the police know about me
[being transgender]. The ones who arrested me didn't, and so I had to tell them.
They locked me up in the cells, alone, for one and a half days…. The judge
denied the fines and gave me a sentence for three months, with one month
suspended. He said he'd seen me too frequently in court, so that the only
thing to do with me was to take me to jail. I was taken to Bulawayo Prison.

She was placed in the men's section, in what she describes
as a severely overcrowded cell.

Some of the inmates knew about
me: some of them used to be my clients on the road. There was another prisoner
like me [transgender] there, "Maia." We were kept in separate cells. We
weren't allowed to exercise like the other prisoners. In the afternoon she and
I were let out of our cells and forced to do work. Some of it was ploughing in
the fields, some of it was cleaning the garden or watering vegetables. The
other prisoners worked in other places. If we failed or got tired, the guards
beat us. Often they forced us to have sex with them, or with other prisoners
in front of them.

They hated us because we were
homosexuals. If any guard felt like being rude or brutal, he could take it out
on the two of us, he could just come and beat you up. If we were late for
anything, for lunchtime or dinnertime, they would beat us up again. We
complained to the officers above the guards, and it got better, but only for a
little while.

The cells were very cold. There
were no mattresses, just a blanket on the floor. Mats or carpets were only
given to those who were sick. But the other prisoners would give me mats or blankets
in return for sex. They gave me and "Maia" soap to wash, milk, and bread in
return for sex. Sometimes the guards would do that as well.

I got sick. I had a pain in my
eye, and if I walked I had heart palpitations. Some of the other prisoners tried
to strangle "Maia" because they wanted to have sex with her. The guards used
to frighten her with dogs. My leg was hurt by beatings; it was dislocated by
some other prisoners when they held me down for sex. It was hard for me to
work, but the guards would call the dogs to threaten me when I got tired.

My leg still hurts. I saw a
doctor in the prison clinic; he gave me two tablets for my eye but when I told
him about my leg he ignored me. But now I am free. Mentally I am OK: all I
need is to be free, and then the other things fall away. [203]

C. Under Permanent Investigation: The Effect of
Sodomy Laws

In November 2000, Namibia's
minister of home affairs Jerry Ekandjo was asked in a riotous National Assembly
session to account for his recent, ominous language. An opposition member
reminded Ekandjo, while SWAPO members of Parliament shouted insults at her,
that he had recently called for "eliminating" gays and lesbians. Where in
Namibia's laws, she demanded, was there anything to justify such "elimination"?
An emotional Ekandjo referred her to anatomy and religion before citing the
law:

If one man allows another man to
penetrate a penis through his anus, whether voluntarily, that is what we call
sodomy. Homosexuality is un-Christian. Sodomy is similar to rape. As far as
I am concerned sodomy is a crime. Yes, homosexuality is a crime.[204]

A close reading of Ekandjo's
statement reveals much about the relations between law, stigma, and identity¾in southern Africa as elsewhere.

The minister was right on one
matter: "sodomy" is a crime in Namibia. So-called sodomy laws-laws which
include the criminalizing of consensual, non-commercial adult homosexual
conduct-have been held by the United Nations Human Rights Committee to violate
basic rights to privacy and non-discrimination.[205]
Nonetheless, they persist in many jurisdictions around the globe. Their
language rarely mentions homosexuality per se:they usually far
pre-date the coinage of that term. The words with which they describe what they
punish are various and often vague. For example, "sodomy" sometimes means, as
the minister indicated, anal intercourse between men; sometimes only the
passive partner is penalized, sometimes both partners. In other jurisdictions,
"sodomy" may mean anal, or also oral, intercourse between any two people,
heterosexual couples included. In still other laws, "sodomy," or other terms,
may be used to criminalize any sexual conduct between two people of the same
sex, regardless of the orifice(s) used.

Namibia and Zimbabwe still retain the crime of "sodomy" as part of their
common law, inherited from the first Dutch colonists who founded the Cape
Colony in the seventeenth century. South Africa also kept the common-law
offense of "sodomy" until, in 1998, its Constitutional Court found it to
violate the Equality Clause. Zambia and Botswana do not mention "sodomy," but
have provisions in their colonial-era, British-inspired penal codes which
criminalize "carnal knowledge against the order of nature" with severe prison
terms.

"Sodomy laws" in southern Africa: How consensual homosexual conduct
between adults is criminalized

Namibia and Zimbabwe
both hold that "sodomy" is a crime, under the common law in force in both.
South Africa shares the same common-law tradition, and "sodomy" was
illegal there until a 1998 Constitutional Court decision found its
criminalization violated the constitution. One standard legal reference work
defines "sodomy" as "unlawful and intentional sexual relations per anum between
two human males." The lesser crime of "unnatural offences" is also still in
force in Namibia and Zimbabwe. It is understood to criminalize
non-anal sexual relations between men. Penalties for these offences vary at
the discretion of judges.

Botswana and Zambia
both have penal codes inherited from the era of British colonialism:

Botswana Penal Code

Section 164:

Any
person who-

a)
has carnal knowledge of any person against the order of nature; or

b)
has carnal knowledge of an animal; or

c)
permits any other person to have carnal knowledge of him or her against the
order of nature;

is
guilty of an offence and is liable to imprisonment for a term not exceeding
seven years.

Section 165:

Any
person who attempts to commit any of the offences specified in section 164 is
guilty of an offence and is liable to imprisonment for a term not exceeding
five years.

Section 167:

Any
person who, whether in public or private, commits any act of gross indecency
with another person, or procures another person to commit any act of gross indecency
with him or her, or attempts to procure the commission of any such act by any
person with himself or herself, with another person whether in public or
private, is guilty of an offence.

Zambia Penal Code

Section 155:

Any
person who-

a)
has carnal knowledge of any person against the order of nature; or

b)
has carnal knowledge of an animal; or

c)
permits a male person to have carnal knowledge of him or her against the order
of nature;

is
guilty of a felony and is liable to imprisonment for fourteen years.

Section 156:

Any
person who attempts to commit any of the offences specified in the last
preceding section is guilty of a felony and is liable to imprisonment for seven
years.

Section 158:

Any
male person who, whether in public or private, commits any act of gross
indecency with another person, or procures another male person to commit any
act of gross indecency with him, or attempts to procure the commission of any
such act by any male person with himself or with another male person, whether
in public or private, is guilty of a felony and is liable to imprisonment for
five years.

For
more detail on these and related laws-and on the definitions of "sodomy,"
"carnal knowledge," "gross indecency," and other terms¾see the Appendix.

These laws are only part of a
confusing canon of provisions by which states may try to regulate people's
sexual behavior. Laws on rape, as minister Ekandjo intuited, may be connected
to sodomy laws in intricate and often incoherent ways. For instance, until a
few months before the minister spoke, no law specifically criminalized a man
raping a man in Namibia. If prosecuted, the act would be charged only as
"sodomy"-with a much lower penalty than a man who raped a woman would face.
Consensual and non-consensual "sodomy" were simply not separated in the law.

Natasha, in Bulawayo, knew that
being a cross-dressing prostitute was the reason for her repeated arrests;
unsurprisingly, though, she rarely knew the specific charge, which probably
came from a law on public conduct in which sex was not even mentioned. The
police, indeed, may have known only marginally more than she did. The simple
lesson is that sex laws are complex. Yet probably in few places are laws
targeting sexuality as confusing as in much of Africa, with its overlay of
colonial, modern, and customary legal forms. The Appendix to this report
attempts to detail (though not exhaustively) many of the laws in southern
Africa that punish consensual sexual conduct between adults, or which are used
to target people for their sexual orientation or gender identity.

Minister Ekandjo was technically
wrong on another matter: "homosexuality" is not a crime in Namibia, or
elsewhere. The letter of the sodomy laws criminalizes conduct, not the condition
of being "homosexual." And yet the minister, in a different sense, is on
the mark. On paper, sodomy laws simply punish certain sexual acts
(however vaguely defined), including consensual acts that usually take place in
private. However, the state apparatus rarely confines itself to seeking out the
secretive conduct itself and catching offenders: instead it extends to
identifying and singling out the kinds of people presumed to be prone
to, or proselytizers for, the criminalized behaviors. Sodomy laws help create
"sodomites." The public is encouraged and co-opted into this effort.

Sodomy laws thus impute to people
not just the commission of an act, but the propensity to commit it. They invite
authorities to assume that a single lapse points to a habitual condition.[206]
That condition in turn ultimately justifies judgment on a person's nature: a
nature which must then be legible in mannerism, appearance, dress. The laws
collude with other forces-social prejudice and stereotype, folklore, and
religious teaching-to generate an atmosphere of stigma, in which certain
outward marks signal the presence of a certain kind of person, and certain
identities and groups become automatic targets of the law.

The effect of sodomy laws thus
goes beyond the legal penalties they provide. They create and maintain
prejudice and stigma. They separate out people¾variously
called "sodomites," "gays and lesbians," "homosexuals," or other names¾and define them as objects of contempt and
hatred. Minister Ekandjo is correct. The language of the law itself does not
justify a call to "eliminate" certain kinds of persons from the land¾but a logic connects them.

It is impossible to say how
frequently the sodomy laws in the region are actually enforced. A high
official in the police in Harare, Zimbabwe, told our researcher in 2000 that he
believes "two or three" arrests for consensual sodomy happen every year in the
city.[207]
The head of the crime division of the Zambian National Police told us in the
same year that he believes three to five people are charged annually under
section 155 of Zambia's penal code.[208]
The last known arrest in Botswana for "carnal knowledge against the order of
nature" to reach a Magistrate's Court happened in 1994; however, as discussed
in the Appendix to this report, other cases may apparently reach customary
courts, where records are still less carefully maintained. Namibia's Legal
Assistance Center told us in late 2001 that it understood two arrests for
sodomy had taken place in the north of the country earlier that year.[209]

Extent matters less than the
power of example. A sodomy arrest is a rude reminder that the state respects
neither the private spaces nor the intimate experiences of stigmatized
populations. The arrest brings the threat not only of fines or jail, but of
public shame. A statement taken by Gays and Lesbians of Zimbabwe in 1997
recounts what many would call a typical story:

"Martin" and I had met on this
particular day and took a drive along the Beira road towards the border on the
outskirts of Mutare. Admittedly although it was a very private spot it was a
particularly dangerous one, where border jumpers and smugglers used to cross.

The police overwhelmed the car
and dragged "Martin" away. I watched as he was slapped repeatedly and then
driven away. Only hours later did I see him again at the Police headquarters in
Mutare.

During this absence they had
obviously extracted the information they required to lay a charge. They did
see me with my pants down but at no time did they actually catch us engaging in
their so-called "unnatural act" …. Even when I was spotted by the C.I.D.
[Criminal Investigations Division] officer with my pants down he was a good
20-30 meters away. "Martin's" pants were not pulled down and at no time was he
seen in a compromising situation.

We were coerced into giving
statements by the C.I.D. Assistant Inspector Masendeka. He threatened to place
me in handcuffs and leg-irons and lock me in a cell should I fail to cooperate.
He wanted to know what we were doing there and why.

We were detained for six hours
and eventually using a well-worn approach he won us over with his "Please help
us to understand what this is all about, we want to help you" technique.

Suggestions of being released
should we cooperate in this regard were made and we made full statements of
what we had been up to.

We were told the next day that
unfortunately we were to be charged. We were told the best thing to do was to
sign an admission of guilt and that the whole ordeal would be dealt with
promptly with no more than a fine. To frustrate the course of justice would
lead to delays, perhaps an appeal, and further investigations, and this would
only attract the attention of the media.

We foolishly fell for this ploy
that inadvertently led to our own prosecution by providing the State with all
the evidence needed to make a case.

The magistrate, a Mrs. Hlekani
Mwayera conducted her court in a heavyhanded and uncompromising way and I wish
that it be recorded … that under the present political climate in Zimbabwe,
where gross repression and violation of human rights goes unchecked, she had to
adopt this unfortunate position….

She sentenced us to a Z$500
[U.S.$25] fine and three months' jail suspended for five years, in defence of
the State she said that the type of crime was on the increase and harsher
penalties had to be imposed to protect morality.

The news paper carried the
article on the front page in graphic detail … [saying] "Caught in the Act."

Not all arrests under sodomy laws
begin with public displays of affection, however. In Bulawayo, Zimbabwe, on
November 11, 1998, Darnley A. and Ronald W. were arrested for sodomy. The two
gay men had been involved in what one of their lawyers called a "domestic
altercation" in their home; when police arrived, one of the pair was initially
held for assault. However, police dropped the charge, and replaced it with
consensual sodomy, on determining the two men were engaged in a sexual
relationship.[211]

A well-known case in Maun,
Botswana, similarly showed the fragility of privacy protections. On December
26, 1994 two men-Graham N., a British citizen, and Utjiwa K., a Botswanan
citizen-were arrested in their home. The police, reportedly acting on
suspicion, had seen the two through their window engaging in erotic behavior.[212]
The pair faced "alternative" charges of either "carnal knowledge against the
order of nature" (section 164 of the penal code) or "gross indecency" (section
167).[213]
The former carried a potential seven-year prison sentence, the latter carried
no stipulated sentence; the "alternative" evidently represented an incentive to
plead guilty to the latter and avoid prison. The British citizen complied, and
received a fine of P1000 (U.S.$100); he later left the country. The Botswanan
refused to bargain; his attorney raised constitutional issues, resulting in the
case being referred to the High Court of Botswana at Francistown.

Almost seven years of suspensions
followed. Arguments were finally heard in September, 2001, with defendants
arguing that the relevant sections of the Penal Code violated constitutional
freedoms of assembly and association, as well as rights to privacy and
equality. [214]
The Francistown High Court finally passed judgment on March 22, 2002, and
upheld the constitutionality of the provisions; Justice Mwaikasu reportedly
stated that "public morals or moral values" were "pivotal to the balancing of
the interests of the members of a given society and stand as the binding fabric
of any society."[215]

In Zambia, one recent case
exhibits the battery of prejudices with which the criminal justice system
confronts homosexuality. The indictment in the case states that on May 16,
1998, in Kabwe, Emmanuel Sikombe "attempted to have carnal knowledge of Mukamba
Mokoma against the order of nature." It asserts (confusing terminologies from
two different articles of the penal code) that he "did an act of gross
indecency with another male person by putting Mukamba Mokoma's penis in his
mouth."[216]

Sikombe was thirty-seven, a
secondary school teacher, and married with three children but separated from
his wife. He taught geography and mathematics at Muteteshi Basic School in
Kabwe, and sometimes gave extra lessons at his home. On May 16, two students
visited him for lessons: Bornwell Sinupwe, twenty-two years old but in the last
year of secondary school, and Mukamba Mokoma, twenty-four years old, who had
been receiving maths instruction.[217]

What happened was the subject of
differing accounts at Sikombe's trial, which took place over a year later, on
April 27, 1999. Mokoma alleged that he woke to find Sikombe placing his penis
in his mouth. Sikombe denied the charges, and suggested that Mokoma had
reported him to the police in order to blackmail him. On May 18, Sikombe was
summoned to the police and told that Mokoma had accused him of possessing
"pornograppic materials" [sic].

Sikombe was arrested but released
on bail after a hearing on May 21. Trial was postponed for almost a year
because the complainant disappeared to the Western Province,despite demands
from the court for his return. [218]

The trial record shows police
and prosecutors were initially confused about how to correlate the alleged act
with charges in the penal code. Inspector Pascal Chakota testified that
initially "I arrested [Sikombe] for sodomy." "Sodomy" is not mentioned in
Zambian law, but "carnal knowledge. . . against the order of nature" is; legal
history suggests that this crime should be restricted to anal, not oral, sex.[219]
However, Sikombe was instead formally charged with under section 156 of the
penal code, with what the trial documents call "attempt to commit unnatural
offences"-though "unnatural offences" are not mentioned in Zambian penal code.[220]
Finally, this was changed at his first hearing to "indecent practices between
males" under section 158.[221]
The question of whether the alleged relations between Mokoma and Sikombe were
consensual or not was not raised by the prosecution, and did not figure in the
judgment.[222]

Rather, the judgment focused on
Sikombe's sexuality. The record suggests that Sikombe was under suspicion in
the community as a man living alone. Kambole Muganba, the complainant's
brother-in-law and "guardian," testified:

Accused was at the College there
for about 3 months. He was new. I learnt in the 3 months that his home was
always visited by boys…. I never saw any woman. He was staying alone.… I don't
knew [sic] why he preferred boys to girls.

Perhaps the most remarkable item
in the trial record is the statement of Magistrate F. B. M. Ngosa, in
sentencing Sikombe to five years' imprisonment on July 12, 1999. It virtually
anthologizes the judicial system's prejudices about homosexual conduct-as a
threat to manhood, to health, to morality, and to biology:

I am aware that accused is a
first offender and he deserves liniency. However, accuseds behavior is alien
to the African Custom. I fail to understand him to be honest. He claims to be
married person. I wonder how he could opt to act the way he did. There are so
many prostitutes if the problem was that he needs to relievy himself of the
sexual draught he was passing through because of the absency of his wife surely
the mouth is not the same as a vagina. God gave specitic functions to each
organs he gave them. The mouth is for eating etc and the vagina is for both sex
and urenating . Accused couldn't change God's desire. For behaving in the way
he did, he emplied God made a mistake his distribution of functions. We are
living in an HIV AIDS area and this behaviour couldn't be condoned by this
court. If accused is HIV positive naturally [the complainant] has become one.[223]
Accused in my view if he is a sick man and he has done this to many boys he is
a sexual serial killer. There has been secretion of fluids. He is merelly
bankrupt and devoid of human, behavior and good behaviour. A detrrent sentence
is appropriate.

Our researcher interviewed
Sikombe in 2000 at Mukobeko Medium Security Prison, outside Kabwe, where he was
serving his sentence. He denied all the charges: "I think Mokoma had heard
things about me and wanted to blackmail me if he could. But when he took the
story to his brother-in-law they believed him and they decided to go to the
police instead." He also said he had been abused in prison because he was said
to be homosexual. Each block in the penitentiary was presided over by a
captain, chosen by guards from among the prisoners. "The captains beat me
because they say I will corrupt the other prisoners. The guards stop it when
it happens in front of them, but they know it goes on behind their backs. When
we go to the [prison] farm to work, the captains do the beatings then, not
inside."[224]
Sikombe was ultimately released on parole on November 22, 2000. He informed us
in 2001 that his prison record had left him unable to find work.[225]

D. Extortion

The possibility of extortion in
the Sikombe case illustrates one of the central effects of sodomy laws. As
Keith Goddard of GALZ says, "Sodomy cases are broadly advertised in public
space through the State press, with names released. The angle of these
articles is always to shame the accused and, as far as possible, to suggest
that abuse was involved."[226]
The Victorian law on "gross indecency," on which several colonial-era southern
African provisions were modelled, was known in Britain as the "blackmailer's
charter": it encouraged entrepreneurial initiatives to exploit the stigma it
imposed.[227]
Such laws in Africa today have a similar impact.

Blackmail appears to be most
feared by gays and lesbians in Zimbabwe, in part because of the public
notoriety thrust on homosexuality there in the last seven years. One legal
advisor to GALZ reports that "between three and ten" cases of extortion come to
the organization's attention annually, and suspects those are the "tip of the
iceberg: most victims don't want anyone to know, not even us."[228]

The same source believes that "a
disproportionate number of victims are white," because they can afford to pay.
However, our interviews suggest this may not be so. The belief, fostered by
media and state, that homosexuality stems from white corruption leads to the
idea that gay and lesbian blacks are receiving white money. As Robert says of
the police who beat him, "The idea was, we're gay, so we must have money, we
must be looked after by somebody." And the identification of homosexuality
with prostitution-a common identification by police and public alike-means that
many of the poor and unemployed assume that gays have ready and regular access
to cash.

Simba M., thirty years old when
our researcher spoke to him in 2000, is nicknamed "Teresa" by his gay friends.
He does not cross-dress but proudly calls himself effeminate. He was born in
Mashonaland East but has lived in Bulawayo since 1993. From an early age, he
says, he liked to talk and be with girls: "My family said I would 'swing' like
a girl when I walked. And I ended up knowing I was gay. I didn't even know
there were words for it. I thought it was normal for everyone, I had no sense
of being different from the others."[229]

In his family only his three
sisters know about his sexuality: he has not told his four brothers or his
parents. Still, he is highly visible in Bulawayo's small gay community, which
he first discovered in the mid-1990s. In 1995, he visited the GALZ Center in
Harare: "It made me feel strong and safe. I thought what we were doing was
allowed in Zimbabwe. I saw that people there were free. I didn't imagine that
there were blackmailers, that there was a law." He continued:

In October of 1996, I began to
realize we were less free. I met a guy in Bulawayo who was a blackmailer. I
took him to my place because he had offered to give me a massage. He pretended
to be gay, even though he is not-I found out later that he had done this to
other friends of mine as well.

He gave me a massage, and then he
said: "You know, this is illegal. I am going to the police and telling them
what you are doing." I didn't know what he meant. We hadn't had sex. I had
some idea that gay sex was illegal, but I had no clear idea. I said: "No, it
was only a game." He said: "We know you, we always see you in town, you walk
like a woman, with different types of guys."

Then I understood what was up.
He asked for money or he would go to the police. I had only Z$1,000 [ca. U.S.$100],
my money for rent and to buy a little food and go to Harare-I was going to
visit GALZ that week. I told him I had Z$50 but I made the mistake of taking
Z$100 [U.S.$3] out of my pocket-he said, give me all the money you have, and I
had to give him the Z$1000.

After I paid out, I was afraid he
might come back and try something; so I left the house for three weeks and went
to stay with my sister, without telling her what happened.

A year later I saw him again in a
nightclub. He just stared at me. Probably he was prowling for other gay
guys. It was his thing: he pretends he's gay and interested and at the end of
the day he gives you hard times.

Another, more serious incident happened in 1999:

I had a friend, named Lloyd. He
is definitely gay. He came to my place as a friend, and started to admire the
place and me. He wanted sex. He was only seventeen or eighteen; I knew he was
too young, so I refused, I told him, if you were five years older I might, but
not now. He said it was OK and that he loved me, but I still refused.

But he had no place to go,
because of his family. So I let him stay with me for some weeks. There was no
sex, though.

Then Lloyd disappeared and went
elsewhere, I don't know where. But sometime later, I met Lloyd on the street.
He talked strangely and said, I am coming to your place without an invitation.
After a week, on a Sunday he came to a kiosk which my sister owned. I was
there with two gay friends, Carlos and Lionel-they all worked there on
Sundays. This was a Sunday in June of 1999. He started to threaten me, he was
shouting and threatening, saying he would tell the police I had had sex with
him unless I gave him money.

We left him there, and the three
of us went back to my place. I hoped he would calm down. We started to cook
dinner. He came back around 8 p.m., knocked at the door but would not come
in. He was very angry and he demanded money. I closed the door on him. Then
he started kicking on it. He kicked it in and came in the apartment. He wanted
to beat me up; he hit Carlos and Lionel. My neighbors started to come to help,
and then Lionel called the police.

When the police came they only
listened to Lloyd. He was screaming at them that I had had sex with them
[Lionel and Carlos]. So the police took all of us to Bulawayo Central. They
refused to take my report; they only wanted to take Lloyd's report.

"Teresa's" friend Carlos remembers:

The way the case was handled was
completely unprofessional. The officer in charge went around the police
station calling other officers to come see what happened, to look at the
"women." He was making fun of "Teresa," and started making fun of Lionel and
myself. He took "Teresa" separately into an interrogation room. Then they
brought Lloyd into the room and helped him make fun of her. The policeman who
was presiding over the interrogation said, "Why are you wearing earrings? Why
are your friends wearing women's hairstyles?" And Lloyd would pitch in: "How
came a man makes dinner for other men?"[230]

In the interrogation room, according to "Teresa,"

The officer wanted me to take off
my pants, to see which genitals I had. He was saying that if I was a girl, he
wanted to have sex with me. Lloyd was telling them I had taken him home drunk
from a bar, fondled him, led him to come, and then taken his sperm to sell for
money to a witch doctor. The message was that this was one way gays get money,
selling other men's sperm. The police believed it. He also said I had given
him an STD.[231]

Carlos and Lionel remained at the
front desk. "We could hear voices in the distance screaming at 'Teresa' and we
got angry and started shouting. I banged on the desk at the front office, and
demanded the officer there that they should ask these questions of me. We said
that if they hurt 'Teresa' we would charge them with assault. The officer who
was interrogating 'Teresa' came out. He told us that he would also charge
Lionel and myself with sodomy, 'Because I believe you fuck.'"[232]

A high police official-Carlos
believed he was an assistant commissioner-eventually arrived:

He demanded to know, "Who
penetrated who? If Lloyd penetrated 'Teresa,' he is guilty of sodomy." So
Lloyd started changing his story, saying that "Teresa" had fucked him. The
police only laughed at this, because "Teresa" was feminine. But they also
threatened "Teresa" that they would charge him with rape. [233]

The police demanded that Lloyd
and "Teresa" submit to forensic examinations to determine whether and how
sexual relations had taken place. "We all took a taxi to Central Hospital,"
Carlos said-"they wouldn't let us take a police car, and they insisted that we
pay. Lionel and I insisted on following. It was midnight, and the doctors
only arrived at 1:30. Lloyd and 'Teresa' were both there in police custody.
But the doctors said they could only do the tests the next day, so they asked
us to come back next afternoon."[234]

Lloyd did not appear the next
day. "Teresa" says,

I had a form from the police
saying that I was under investigation for rape. They checked my private parts
to see if there were any signs of sex, or sperm going through, and they also
checked my anus. They also checked to see if I had any STD but this came back
negative. They were very cold during the whole thing.

After that, the police made me
come back to the station every day for the next month. And after that, for two
more weeks I had to go every Monday. The police said they wanted to see the two
parties, but Lloyd never came to those meetings. They would ask me a few
questions and then send me home. Eventually Lloyd called them and said he was
dropping the charges. And that was the end of it.

Later I went to Lloyd's place and
met his father, who said, "Oh, this is not the first time this has happened."
Lloyd had done it to a pharmacist at a psychiatric hospital, who apparently
actually went to jail.

Afterward, my landlady threw me
out of my apartment after giving me twenty-four hours' notice. My boss at work
heard something about the story and started probing, but apparently he couldn't
confirm anything. My great luck was that it never came out in the papers. But
a lot of the police knew I was gay, and so they believed anything this man
[Lloyd] said about me. When I see the police now, on the streets, I am afraid.[235]

Our researcher was also able to
interview Lloyd, the alleged extortionist. He refused to speak about the
reported incidents. However, the need for secrecy in his own life appeared to
weigh heavily on him.

I have not told any of my family
members I am gay; I'm afraid. They are religious people. It is extremely
difficult for me. I am not ashamed-it is inborn in me, it is an inborn
thing-but I can't tell anyone; they do discriminate.

People in my neighborhood do
suspect I'm gay. They ask me and bother me: "Why don't you walk around with
girls, there are girls who are interested in you and you give them the cold
shoulder. What is your problem?" They will discuss it in public. I am pointed
out.

I know fifteen or so gay people
in Bulawayo. None of them are my friends.[236]

Sex as well as money can provide
a motive. Nhlanhla N., twenty years old when our researcher spoke to him in
2000, lived with his family in the Mzilikazi district of Bulawayo. He feels he
has been conspicuous in his neighborhood as a "sissy" since his early teenage
years. And, he says,

When I was sixteen, in 1996-97,
there was this guy who forcibly wanted to go out with me, forcing me to have
sex. He would just come to my house when my mother was not there and say,
"Let's have sex." And grab me and take me and I would threaten to scream and
only then would he leave. If I'd go to stores, he would run after and try to
grab me and take me to his house. And I would have to run away.

He felt angry because I rejected
him. He is a jailbird, he had been in prison. So he said, "Since you don't
want to come to do whatever I want to do with you, then we will meet in
prison." He threatened he would tell the police that I was gay. He used to say
that again and again. He said also that he would turn himself over [to] the
police for stealing, and say that I was his accomplice.

I was so scared. But I never did
give in. And then he disappeared, because he was in prison again. But he is
out of jail now. When I go to stores I sometimes bump into him. Once he did
it again, he threatened he would send me to jail with him. I ran away, and
since then I haven't met him.[237]

"Munashe" tells another story of
extortion. He is twenty-eight; since 1995 he has taught secondary school in
his home city of Mutare. In early 1999, he says,

I met this guy through a friend
of mine. He is not gay, but he is quite handsome, though. And he knew that my
friend and I were gay. We would go out and buy beer, and he thought maybe we
had money.

One night, I went to my gay
friend's place, and this straight guy was there. After a while I said I was
going home, and he said, "It's late, I'll accompany you part of the way."
Halfway to my place, I decided to stop at a pub. He asked if I had money to
get him a beer too…. And then in the pub the guy said, "It's late, why don't
you let me sleep in your home?"

I found no reason why I should be
suspicious; I treated this guy as a brother. But when we got home he was very
curious about sex. He wanted to know how gay people did it. I told him about
it, and I said, some do it not because they are gay, but for money. To my
surprise, he said he wouldn't mind doing it if a person offered [him] money.
He said, "We can have sex if you help me with Z$200 [U.S.$12]."

I refused. I told him, "You are a
friend; I can't have sex with you. I don't have sex with people and pay them
money. And I am not a rich man."

So he said, "How much will you give
me for escorting you home from your friend's place?" I told him he had offered
that and it was free. But he insisted on being paid. He said, "Give me Z$100
[U.S.$6] or I will take something from the house. I can even go to the police
and tell them that you tried to seduce me." And then he raised the price to
Z$200. I tried to get him to come back the next day but he wanted the money
now, or something as an assurance. He was holding a pint bottle of beer, and
he broke it and threatened me with it.

I was living with my younger
brother and [he] woke up because the guy was screaming: "He promised me money:
Give me money!" He told my brother that I had tried to fuck him. And he said:
"I will come to your school and tell your headmaster he employs gay people. I
will go to the police." There were other lodgers there, it was after midnight,
and they all came.

I had to give him some money to
make him go. But he would come by often in the evening after that, still
demanding money. Every week, once or twice a week, he came; sometimes he
knocked on my bedroom window at 2 A.M. I am terrified. He said, "I will make
life hell for you if you don't give me money." The headmaster and the other
teachers at my school didn't know about me.

I called GALZ in Harare. They
said to tell him that I would go to the police if he didn't stop, and to make
sure I had people around me as witnesses when I talked to him. And when I did
that, he stopped.[238]

GALZ advised a high-risk
strategy, based on the belief that, given two crimes-sodomy and
extortion-authorities would not prosecute both; and on the bet that, of the
two, they would prosecute extortion.

Yet the most famous case of
extortion and sodomy in Zimbabwe showed that police were quite willing to take
both blackmailer and victim to court. In that case, an attempt at extortion
gave authorities the chance to open a political prosecution for non-consensual
sodomy (and Zimbabwean law at the time made no distinction between consensual
and forced sodomy). The prosecution was aimed at discrediting Keith Goddard,
programmes manager of GALZ.

In 1997, Goddard began receiving
letters from a man named Siphephele Vuma. In the first, dated May 31, 1997,
Vuma wrote "informing you about my misfortunes and financial problems," and
gave Goddard "up to the 25th of June to send me a telegram worth
between Z$7,000 and Z$10,000 [U.S.$350-$500]." Goddard did not know who Vuma
was; the letters were unsolicited and he did not respond. Vuma wrote Goddard
again later in 1997, claiming that sexual relations had taken place between the
two, and demanding goods and cash. Goddard then took the two letters to the
police, asking them to investigate. The police apparently did nothing.

In January 1998, a third,
threatening letter from Vuma accused Goddard of having sodomised him, and
demanded goods and cash totaling approximately U.S.$2,000. Goddard also handed
this letter over to Harare police.

On May 1, 1998, Sergeant Dowa of
the Harare Central Police Station CID (CriminalInvestigations Department)
visited Goddard, asking him to file a complaint against Vuma for attempted
extortion. Two weeks later, Goddard was summoned to the police station. He
was asked to identify a young man sitting in the office. Goddard said he had
seen the man only once, shortly before he received the third extortion letter,
when the man had approached him at the GALZ office. Sergeant Dowa confirmed
that the man was Siphephele Vuma.

Goddard was asked to leave the
room while Vuma made a statement. Called back, Goddard was told he would be
charged with having sodomised Vuma at gunpoint.[239]

A remarkable pair of parallel-and
paradoxical-trials then began, in which both alleged sodomite and alleged
blackmailer faced charges. Vuma was arraigned on June 9, 1998, charged with
attempted extortion for demanding (in the end) Z$7,000, a color television and
VCR, a stereo, a two-plate stove, an electric kettle and electric iron from
Goddard. Initially, Vuma pleaded guilty; however, the judge, Regional
Magistrate Custom Kachambwa, changed his plea to not guilty, saying Vuma's
conflicting explanations for his actions-in particular, his claim that he had
been sodomised-"amounted to a defence."[240]

Goddard appeared in court on June
12, 1998, and was arraigned for sodomy. The state alleged that, on February
13, 1998, he had met Vuma at a Harare nightclub, taken him home after promising
him a job, and then "produced a pistol, inducing Vuma into submission."

Derek Matyszak, one of Goddard's
attorneys, notes that "any confidence in the independence of the judiciary is
not sustained down at the magistrate's court. Magistrates are civil servants,
and all promotions go through the president'''s office. It is absolutely plain
that Keith's was a political trial":

The victim of a blackmailer
reported the blackmail to the police, and was himself arrested for sodomy. Even
the police could see this was a problem. So they arrested the blackmailer as
well, to make themselves look impartial.[241]

Goddard's case was repeatedly
postponed, and ultimately placed on remand, obliging him to appear in court
monthly but inconclusively. In May 1999, according to Matyszak, the
prosecution decided "there was no way the sodomy case would kick off while the
complainant, Siphephele Vuma, was going through trial at the High Court where
he is being charged with extortion."[242]
This ensnared both cases in a catch-22, since Vuma's only defense against the
extortion charge was to prove that forcible sodomy had actually taken place.

Vuma's case, therefore, also
lingered in limbo. Ultimately, Vuma claimed that only the third letter he had
allegedly written Goddard was authentic, and was a legitimate claim for
compensation for the trauma he had suffered due to assault; the other two
letters were forgeries, he asserted. (Only the third letter was written after
the date when, as he finally told police, the alleged sodomy had taken place.)
Vuma said he had written the letter on the instructions of a police officer in
his home town of Chipenge; he could not remember the name of the officer, who
he said had since been transferred.[243]

Over three years later, both
cases remain unresolved. Goddard's case was eventually removed from remand,
but he is still subject to summons at the prosecutors' discretion. Matyszak
believes that "The state now realizes it had no basis for arresting Keith; on
appeal, at the least, to a court less politically malleable than the
Magistrate's Court, they would lose, and they do not want a judgment from a
High Court saying they should never have brought charges." Yet the charges
still remain a potent potential form of harassment against both Goddard and
GALZ. As Matyszak says, "They have a loaded gun in the drawer; and any time
they want to get at Keith, they will dust it off and the whole thing can be set
in motion again."[244]

E. State Discrimination and Abuse in other Spheres

Repressive law and homophobic
rhetoric, particularly in combination, have a sweeping and negative effect on
the capacity of gay, lesbian, bisexual, and transgender people to organize, to
express themselves, to appear in the public sphere, to exercise basic freedoms,
and to access essential services.

1. Association and assembly

Even the existence of gay and
lesbian organizations-their basic right to association-is endangered. The
example of Zambia, where state officials warned that any attempt to register
such an organization would be a criminal offence, far from being extreme, is
exemplary of the problem. In Botswana, the law has left the lesbian, gay,
bisexual, and transgender rights group LEGABIBO only able to operate under the
auspices of a supportive human rights organization, Ditshwanelo. LEGABIBO's
leader told us,

We have to register, which we
intend to do-everybody is quite unanimous about that. We need to be able to
set up an organization, a body that is responsible for the funds which we hope
to raise through donors and so on. The catch, though, is the government has
stated quite categorically that they will not register us because we engage in
activities which are not compatible with the penal code…. [I]f we try to
register, the government will refuse, but in order for us to get funds and to
run any programs, such as the HIV/AIDS program, we need to get donors.[245]

Public gatherings of
homosexuals-the exercise of the right of assembly-are almost inconceivable
under the pressure of law and state homophobia. The few attempts of gays and
lesbians to engage in public political manifestations, always in coalition with
and to some extent under the protection of other, more mainstream groups, have
been met with intimidation. In 1998, when GALZ was invited to join an NGO-sponsored
march through central Harare to celebrate Human Rights Day on December 10, its
prospective presence provoked threats. However, authorities refused to assign
police to protect the marchers-saying that GALZ's participation might provoke a
riot. Although the march took place without incident, some other organizations
withdrew in fear.[246]

When Namibia's The Rainbow
Project (TRP) organized a series of workshops for discussing sexuality in
November 2001, the largest security firm in Windhoek refused to hire out
security guards to protect the event, reportedly because it feared its own
contracts with SWAPO would be jeopardized.[247]
When TRP and a coalition of NGOs organized a march in Windhoek to protest
President Nujoma's homophobic attacks in April 2001, the SWAPO Youth
League-which had declared they would present a petition to the National
Assembly to arrest all gays and lesbian immediately-threatened to disrupt it.
Organizers asked for a police presence to ensure the marchers' safety. Their
request was denied. Instead, officials assigned members of the Special Field
Forces (SFF)-the president's elite troop, repeatedly implicated in attacks on
activists-to guard the march. The "protection" amounted to intimidation.[248]

2. Censorship

State censorship, the denial of
the fundamental right to freedom of expression, is a basic threat to conditions
of lesbian, gay, bisexual, and transgender existence. Censorship prevents
self-expression, the assertion and communication of an identity. The often
violent punishment of non-conforming modes of dress, appearance, and manner-the
steady police harassment, described above, of people who break gendered norms
for public behavior, as well as the condoned community retaliation against such
people, to be explored below-is a form of censorship.

Censorship is also used to stifle
the development of a community. It represses the sharing of experiences and
the exchange of information which help people discover what they hold in common
with others. In this form-directed at organizations as well as individuals-the
censorship of lesbian, gay, bisexual, and transgender expression in southern
Africa is particularly egregious. It prevents groups from engaging in
outreach, supporting their members, or establishing a public presence. As
explained in the Appendix below, the censorship powers of most governments in
the region remain extensive. Zimbabwe's extraordinarily broad Censorship and
Entertainments Control Act-one of the repressive instruments left behind by the
white settler regime-was invoked against GALZ to bar it from the Zimbabwe
International Book Fair in 1995. It has repeatedly been used to confiscate
GALZ materials. GALZ maintains a resource center in its offices, full of
materials on homosexuality meant to inform and support its members as well as
inform the general public. Derek Matyszak, an attorney who has worked with
GALZ, says that the center is "under constant threat of being seized. The video
library is actually kept off premises. The police could sweep in and take all
the books and videos, a storehouse it took GALZ years to accumulate, and it
could be years before GALZ got them back, if at all."[249]

Romeo Tshuma remembers a 1996
raid on GALZ's quarters: "We had just moved to this house. Two policemen came
here and demanded that I produce a list of the executive committee and
membership. We managed to hide the list of members-it was taken to someone's
house. They kept coming back and searching the offices."[250]
In the 1996 raid, another member says, "They [the police] did not know where to
start. They couldn't tell one video from another." And he adds, "They sweep
irregularly. They have generally left GALZ alone in recent years-either
because they have lost interest, or because they are afraid of the
international response. But of course they always have the power to come back."[251]

Materials and information sent to
GALZ from abroad are routinely seized under the Censorship and Entertainments
Act, which creates a Board empowered to ban materials from public viewing or sale.
The issue has become a running contest between GALZ and the government. As
long ago as 1994, Matyszak says, "GALZ decided to test the Censorship Board, to
see if they really would ban anything homosexual, regardless of how sexual it
actually was. They rigorously cut out any references to homosexuality from
publicly shown films-the kiss between two men in the film American Beauty
was cut out, for instance. What would they do with a film for private
viewing?"

GALZ selected and submitted the
Merchant/Ivory film Maurice,based on E.M. Forster's novel,to
the board. The board banned it; "it was clear from the language of their
decision," Matyszak says, "that they had barely seen the film."[252]
The rejection notice stated that

an examination of the video would
speak for itself, and the entirely homosexual theme of the content. It was
considered that the film offended … and was accordingly rejected. The subject
matter of the film is of course contry [sic] to Zimbabwean legislation.

The film would have little appeal
to the normal Zimbabwe cinema audience, other than perhaps one of prurient
interest, but obviously of greater interest to those persons inclined to such
perverted sexual activity as may be found in the organisation to which the
video was sent from a source in England, namely the Gays and Lesbians of
Zimbabwe.[253]

GALZ tried to sue the board in
the Maurice case, but eventually dropped it-"we had other legal battles
at the time," Keith Goddard says.[254]
Matyszak adds, "the upshot is that GALZ simply doesn't expect to import films
now."[255]

Goddard told us in 2000,

Stuff continues to be seized, but
irregularly. They will let blatantly sexual material sent to us get through,
but seize a book about gay clergymen. It is totally and completely inconsistent.

Now, when we ask the board about
seized material, sometimes they will say it has been burnt. Sometimes also,
they will release it, without our even going through our lawyers, if we give a
call. There's no pattern to it at all.[256]

One seizure notice which GALZ
showed our researcher was a three-page list of items confiscated; the extensive
roster included four copies of the Advocate and three of Out-both
are U.S. gay news magazines; one book called, Coming Out; and "one
envelope of newspaper cuttings."[257]
Other, more recent notices recorded the seizure of the book, It's Not
Unusual (A Gay and Lesbian History), and the video, An Evening with
Elton John.

3. Human rights abuses in the context of schooling

Young lesbian, gay, bisexual, or
transgender people face discrimination in school environments, where
authorities routinely either participate in, or fail to protect them against,
harassment and abuse. Discrimination is often rife in places where tolerance
should be taught. In Namibia virtually every gay or lesbian person interviewed
for this report told of persistent discrimination in public schools.

"It started in grade school," one
woman said: "I was different and the teachers seemed to know. They would
harass me. They would not let me attend classes-they would ask me, 'Are you a
girl or a boy?' And when the other students harassed me, I could not go to the
teachers because they would agree with the students. Finally I just gave up
even trying to go to school. I failed tenth grade. Now I can't get a job."[258]

Genevieve, in Windhoek, told us
she was repeatedly harassed by her teachers and the principal of her secondary
school because she wore her school uniform with trousers instead of with a
skirt. As a result, she failed tenth grade and dropped out of school. What
particularly confused Genevieve was that, during the winter, girls were told to
wear trousers with their uniform; but she was punished for continuing to wear
the winter uniform after the weather changed.[259]

Isaiah, a twenty-year-old gay man
who managed to get through primary and secondary school and is studying at the
university, explained, "School was not my favorite place-I was frightened in
the classroom because if I could not answer the question I was harassed. The
male students would beat me on the head and call me 'moffie,' but none of my
teachers ever tried to stop it." Isaiah credits the fact that he nonetheless
stayed in school to his having discovered three other gay boys. "We were all
harassed-they would come up to us and shove and push us and call us 'moffies,'
but at least we were not alone."

Harassment has continued even at
the university. The day after President Nujoma called for gays and lesbians to
be deported, Isaiah says, he arrived at the campus to find a group of students
greeting him with the chant, "You are going to be deported."[260]

Isaiah, like many of the gay men
and lesbians interviewed, expressed intense fear of being deported. "I feel
very frightened because I think [Nujoma] meant what he said and where would I
go?"[261]
For numerous young people who were forced out of school because of their sexual
orientation, the very idea of being deported is confounding. "I am Namibian, I
was born here, I've never been out of the country, what would I do?" asked
Irma, an eighteen-year-old lesbian from Windhoek.[262]
A few voiced defiance in the face of the threat of deportation. One lesbian
said, "After I saw the president's speech I thought 'I'm a human being and I
happen to be Namibian and a lesbian but Namibia is my country-I deserve
respect, and besides, where are they going to deport me?'"[263]

The men we interviewed spoke more
of verbal and physical harassment at school. The women reported fearing sexual
violence. "There is a myth that everyone talked about at school," one young woman
recounted- "that being raped by a man will turn women straight. They say,
'lesbians must be raped to be turned normal.'"[264]

For women's rights activists, the
harassment of lesbians and the acceptance of rape as a "cure" are consistent
with a culture they say condones sexual violence against women. Elizabeth
Khaxas of Sister Namibia points to a high teen pregnancy rate, and the
subsequent school dropout rate, as similar phenomena stemming from the same
root causes. She comments, "Most young black lesbians that we know dropped out
of school. But it is not just lesbians, it is other girls who leave because
they become pregnant. Once a girl is pregnant, she cannot go back to school.
Many of these pregnancies are a result of sex with a teacher. But teachers
protect themselves, the principals protect the teachers, and the school boards
are not strong enough to stop this abuse."[265]
Khaxas believes that neither violence against lesbians, nor other syndromes
which impede women's access to education, can be remedied without state action
to promote equality: "These girls experience intense pressure to have sex. The
Legal Action Center has done several reports about the high incidence of rape
and domestic violence in Namibia. Violence is used to keep women in their
place. There is a national campaign to address HIV but it does not address
inequality and how women cannot talk to men, including their husbands, about
sex. Girls will keep being pressure to have sex or raped and then they will
drop out or get forced out of school until we address this basic problem." [266]

4. Health and HIV/AIDS

The prevailing pattern of
HIV/AIDS transmission in southern Africa is through heterosexual contact. Yet
lack of access to information, along with discrimination in provision of basic
services, puts lesbian, gay, bisexual, and transgender people in the region at
particular risk both of contracting HIV/AIDS, and of suffering
disproportionately from its medical consequences.

Only in South Africa, among
countries in the region, is information on HIV/AIDS prevention specifically
targeted toward women who have sex with women, or men who have sex with men.
Elsewhere, states refuse to distribute such information-much less engage in
active outreach or campaigns-because it would mean "promoting homosexuality."

Everywhere, wherever you go,
there are posters on the road, stickers-they are really preaching about it. Every
Monday there is a radio program that talks about AIDS and they talk about a lot
of different issues…. Our government is supplying condoms for free. You can
go to hospitals, schools, everywhere, sometimes even on the streets. They are
trying to promote it, they really are helping people.

But they aren't focusing on gay
people, it is for everyone else. For gay safer sex, [my friend] "Sexy" and I
went [to Zimbabwe] to a safer sex workshop at GALZ. [267]

In Namibia, a national campaign
to prevent HIV transmission and promote awareness does not address same-sex
sexual relations. State officials who tried to promote outreach to men having
sex with men and other stigmatized, vulnerable groups have been harassed or
silenced. In 1998, our researcher spoke with Michaela Hubschle, then deputy
minister in Namibia's Ministry of Prisons and Correctional Services. Hubschle
was a strong proponent of prisoner's rights who had actually organized
observances of Human Rights Day in penitentiaries. "Very few people since this
country was created want the human rights of prisoners, and their health,
protected," she said. "If you try and do anything they not only belittle it
but abuse you." Hubschle had publicly called for distributing condoms in
prisons, after consulting with The Rainbow Project on HIV/AIDS issues for men
having sex with men. She had also condemned the law against homosexual sex,
since men who admitted to homosexual conduct in prisons were made subject to
additional penalties. Speaking before prisoners themselves in Windhoek, she
deplored the fact that "these practices … are usually met with disciplinary
measures, not health measures."[268]

As a result, she said, other
ministers refused to meet with or speak to her. Forces in her own party,
SWAPO, were "preparing a campaign" against her.

SWAPO people went to the papers
asking that I be exposed. Exposed for what? It is as if they think they can
blackmail me because they have information on me. One paper called me the
"Minister of Condoms."

You see how things are done here.
On my answering machine two weeks ago was a message with twelve and a half
minutes of insults. "We will fuck you, we will never use condoms, it doesn't
matter if you get AIDS." They made the sounds of someone with an orgasm. Who
gave them the direct office number?[269]

Hubschle left the government in
2000; she now works as an advocate for human rights.

In 2001, urged by South African
officials to consider distributing condoms in detention, another Namibian
official reiterated, "Giving condoms to prisoners is the same as promoting
sodomy…. Consenting sex between two male prisoners will be considered sodomy
and it is punishable."[270]

Similarly, when Namibia's health
minister, Dr. Libertina Amathila, urged in 2001 that the government consider
decriminalizing (and regulating) sex work as an HIV prevention measure, she was
subjected to a storm of attack. SWAPO's chief whip in the National Council
accused her of "promoting" prostitution[271];
a branch of the SWAPO Women's Council called for harsher strictures on
prostitution as well as homosexuality (saying among other things that both
practices interfered with Namibian women finding partners).[272]
The minister withdrew the proposal.

Part of the worldwide history of
responses to HIV/AIDS is the story of NGOs filling the gaps left by government
inaction. Some groups in southern Africa courageously try to compensate for
state neglect. However, the criminalization of homosexual conduct means that
even NGOs who try to make accurate, life-saving information available to men
who have sex with men or women who have sex with women] could conceivably face
prosecution, or a campaign of hysteria and harassment such as the one that
extinguished the fledgling group in Zambia (see above). At the very least, groups
such as GALZ, which manage to provide essential information and counselling to
their own members, still find themselves hindered from engaging in broader,
public outreach campaigns.

"Tsitsi Tiripano" was the
pseudonym adopted by Poliyana Mangwiro, an open lesbian activist in GALZ who
died of AIDS-related complications in May 2001. She had been openly
HIV-positive, and helped sustain "GALZ Positive," a counselling and support
group for HIV-positive members. Mangwiro told our researcher in 2000,

I am living with HIV/AIDS since
1998. I am the only positive lesbian I know in the country. It was a double
coming out and it was very difficult for me.

Now GALZ is standing up for gays
and people are standing up for themselves; but it is different around HIV.
Even other members look at you with a lot of fear. It is more difficult if you
are in GALZ Positive, it is hard to stand up and harder to be stood up for, you
know?

There is no medicine [for most
people living with AIDS in Zimbabwe]. The only treatment I am on is vitamin
supplements. The Ministry of Health won't help GALZ Positive or communicate
with us. They say, homosexuals are spreading AIDS.

Even customs officials, Mangwiro
said, confiscated condoms shipped to GALZ Positive from abroad: "They say, are
you a health center?"[273]

Romeo Tshuma, thirty years old,
is also a leader in GALZ Positive. He joined GALZ in 1996. "It was a bad
time. I wasn't sure I was doing the right thing by working here. There was
much police pressure, it was very scary. But I decided to work for the center
and for the community."

In 1998 he took training as a
counsellor in GALZ's support programs:

I was trying to gain confidence
and strength to learn my HIV status. I was suspecting it. Late in 1998 I went
for the test and learned I was positive. I understood my situation through the
examples of others, and through what I had learned through counselling.

After that, I was admitted to a
local hospital with TB [tuberculosis]. GALZ members were gossiping about me. So
I decided not long after that to tell the rest of the organization I was
HIV-positive. I came out because I wanted to help other people and be an
example that we can survive.[274]

As of 2000, GALZ Positive had
twenty-six members. Public officials spurned contact with the group, and
Tshuma says he would often have to "force himself" into meetings to talk about
being gay and HIV-positive. The National AIDS Coordination Program-a
state-coordinated coalition run through the Ministry of Health-would not let GALZ
Positive join; its head, Chipo Mbanje, "refused to talk to me," says Tshuma.

The Zimbabwe National Network of
People Living with HIV/AIDS (ZNNP+)-a national support organization, largely
funded by the state, which also carries out awareness campaigns-also rebuffed
approaches. After many attempts, Tshuma says, he finally got GALZ Positive
invited to the 1999 general congress of ZNNP+. A few days after an invitation
arrived, however, another letter came, saying the invitation had been a
"mistake."[275]

Peter Joaneti, another GALZ
Positive member, has belonged to its parent group since 1994; he tested
HIV-positive in 1996. He was furious at the ZNNP+ excuse that they "had used
the wrong directory" in inviting GALZ. He says,

GALZ Positive decided they should
send me to the general congress anyway. I phoned three former board directors
of ZNNP+, who were sympathetic, and they all said I should go.

On the very day I went to check
in, someone from their office phoned and said I should not come, there would be
problems if I came. I went anyway. I was told, when I got there, that I could
come in but only if I didn't introduce myself as a member of GALZ.[276]

"They told us," Tshuma remembers,
"to hide our identity so people wouldn't be violent toward us. But they were
really afraid the government would defund them if they admitted GALZ." Joaneti
insisted on saying whom he represented. "I was provocative and it was good." He
was asked to serve on the Youth Advisory Board of ZNNP+. However, he adds,
"Now I always introduce myself as gay. But not necessarily from GALZ." Tshuma
adds, "We are a ZNNP+ member now. But they still don't send us information
about meetings and such things. I met with the president of ZNNP+ six months
ago and he said, 'I'll let you know of anything happening.' But we still have
no word."[277]

Prejudice and discrimination also
affect lesbian, gay, bisexual, and transgender people's access to medical
treatment for HIV and other conditions. Confidentiality can be violated and
verbal abuse inflicted by those supposedly sworn to give care.

Wendell, a gay man in Namibia,
says, "We don't have people, like doctors, who are gay-friendly and would
examine you and say, well, you have got this STD [sexually transmitted
disease], you should do this, and things like that …[b]ecause there are several
times that people were laughed at because the STD was on the wrong side
[anal]-which really offends you as a person."[278]
Derrick, a gay man and youth activist in Windhoek, refers to his own
experiences as well as those of lesbian friends:

What happens with lesbians, such
as with STDs, they report it and [medical professionals] will definitely tell
the lesbians, "Come and get your boyfriend." And the girl will say, "I don't
have a boyfriend." And then they will say, "Where did you get it? Huh? Are you
telling me you got this from a woman?" And blah, blah, blah-the way they talk
to you is so bad, really.

And the woman will come back from
the hospital and say, "Oh, the nurse said this to me and that to me." And then
the rest that are infected will be scared to go to the hospital. We need to
get some good doctors and nurses for the LGBT [lesbian, gay, bisexual, and
transgender] people, where I can feel comfortable to talk with…. Imagine me
going to a doctor and saying "I'm a homosexual and I want this and that from
you." You see, it's really best if you find and stay with one doctor that you
can really talk face-to-face. I need a doctor I can trust, a doctor that will
never take my problems outside. Especially here, the story spreads very fast.[279]

Romeo Tshuma recalls that in late
1998, "when I had TB, I went to Belvedere Clinic, a municipal clinic. I gave
them the GALZ address. The presiding doctor recognized the address and said,
are you homosexual? And then he didn't want to treat me, he said he didn't know
how. But I made him treat me."[280]

Tshuma also remembers,

I had a friend who died. He had AIDS and had another STD. He went to a local
clinic in Mbare [a high-density area of Harare]. The nurses were not helpful.
No, it was worse than that. They embarrassed him, after that he wouldn't go to
a hospital because of the embarrassment. They called the other nurses round,
they said, "Come and see, how can a man have an STD in his ass, are you a
homosexual?" He died in part, I think, because he had no place to go.

"Even now," Tshuma says, "when
GALZ Positive members go to the clinics, they say, 'Oh, the gay guy is here.'
A person can feel intimdiated by this. They gather around because they want to
see what a gay person looks like."[281]

Tshuma is nonetheless committed
to political activism.

Knowing my status has given me
peace and strength. I say to people who are worrying about being tested, that
you need to know what you are facing. I feel really strong today. Not, I
think, because of medication. It was my mind that gave me the strength to get
as well as I am today. I know I have one thing to fight for; I only have one
thing to think about in my life-I am HIV-positive and I will fight for my
health and my rights.

Still, he says, the road has been
hard. "My brother said to me when I first came out as gay, I wish you were not
part of the family. This was in 1998. He actually said to me, before he even
knew that I was HIV-positive: 'You will die of AIDS: only gay people die of
AIDS.'"[282]

Peter Joaneti says,

There is a double discrimination in
society for gay and HIV-positive people. In the community, in the gay world,
people gossip about your HIV status, talk about your personal life and health.
And people out there say you are HIV-positive because you are gay. And they
believe gays cause the spread of HIV/AIDS.[283]

That some in Southern Africa still
believe AIDS to be a "gay disease," despite the massive AIDS crisis across the
continent spread by unprotected heterosexual sex, is still further testimony to
the lethal failure of states to promote full awareness. As The Rainbow
Project's Ian Swartz observes, governments refuse to include homosexuals in any
HIV/AIDS materials on HIV/AIDS, but their leaders persist in blaming
homosexuals for AIDS in Africa.[284]

Still worse, if some heterosexuals
feel that gays cause HIV, some homosexuals feel themselves invulnerable to
it-precisely because they have never seen AIDS information directed at them. In
Namibia, Derrick, who gives safer-sex workshops for gays and lesbians for The
Rainbow Project, told us, "Some of the youth believe that if you are gay-ah, it
was so hard when we first started with the youth!-that if you were gay or
lesbian, that you don't get AIDS."[285]

A. Carlos' Story

Carlos Mpofu, from Bulowayo,
Zimbabwe, was twenty years old when our researcher spoke to him in 2000.

I first realized about my
sexuality when I was about twelve. I realized I wasn't attracted to girls: my
first wet dream wasn't with a girl, but a man. It first made me think of the
sexual side, and what side I was on. And then I was always a feminine child.
But I didn't have a word for it. The only word I knew was incubikile-an
Ndebele word, but it wasn't specific for gays, it meant anyone who was
handicapped or deformed.[286]

Later I found out there were
older words that had always been used for people like me: isitabane or isikesane.
But I didn't know that then.

I only started doing anything
about it seven years later, when I was nineteen. I've only been openly gay to
my family and society for one and a half years. It has been exacting; it has
had its ups and downs. There were glorious moments and moments when I thought,
"Why did I come out? I want to die." I've done so much. I told myself I was
coming out to fight for gay rights. I wanted to be in the forefront of the
battle. I am not a coward. My being in the community has a reason to it. I've
done things faster than other people who have been out for five years.

I come from a family of three
children-two boys, one girl, I'm the middle child. My father was a soldier, a
normal middle-class family, very Pentecostal. My parents divorced when I was
twelve, my mother remarried. I was already becoming rebellious. I was still in
primary school, an all-boys' school. They could tolerate a bit of femininity in
one or two boys; they had a slot for it.

But I was so feminine it was a
problem with the teachers. And I had even more problems in high school, when I
reached thirteen. Other boys already knew what being gay was all about. I was
just finding out; the words scared the shit out of me.

In my second year of high school
I became active in a church. Beyond services, I went to Sunday school and
youth meetings. My "feminism" was not an issue there. They didn't notice it
so much at first, for some reason. I was precocious and very intelligent. I
challenged the pastors and directors of the church. As I got more involved, my
family worried less about the feminine thing; they took it as a phase.

While in high school I was also
doing a diploma in Bible school with the church, to get me ready for church
leadership; and I went through all well. In the church I was given a position
as a junior youth leader, leading 250 kids between eight and fifteen. I was
seventeen. I became a very prominent Sunday school teacher; my church was one
of the biggest in the city.

It was a hectic three years but
the best I ever had in my life. Everything was moving smoothly. And then I
got a job as secretary to the pastor, one of the best-known pastors in the
city. I was promoted to be administrative clerk of the church school, and I
did both jobs simultaneously.

And then in 1997 people started
talking about me again, how feminine I was. I guess as I grew older they
started to notice more. A girl and I started a Pentecostal dance group; it was
a girl's troupe, but I became a "temple dancer" too. Then people really
started attacking me. That went too far. "Why is this young man as graceful
as a young lady?" In 1998 my parents became more worried. And late that year
things got more serious.

In September one lady with a
child in my class complained to the pastor. She went to him and said she had a
problem with one of the Sunday school teachers; I was too feminine for her son.
He was eight or nine, and impressionable, she was afraid I would molest him, or
I already had. The pastor didn't believe it. He called a meeting, and decided
all the talk about me was children's gossip.

But I was singled out and
stigmatized within the church after that. Members of the congregation would go
to teenagers I taught and say, "Be careful of Mr. Mpofu, he's gay, he might
molest you." I only heard about this talk a month or more later. In December
1998, there was another incident. There was a Man's Network, a social group
within the church. One man in it accused me of staring too hard at him. That
made my reputation even worse.

Meanwhile, in high school I had
just begun inching toward acting on my feelings. I had started dating my
O-level teacher. I never had real sexual contact, just small stuff; and we
never even discussed the fact that we were both gay. But we knew that we enjoyed
each other's company. He was much older. We broke off for a while, because we
were frightened. But in December 1998, we reconciled. One night early in the
next year we went out; we were holding hands and cuddling, sort of, at a movie
house. One of my workmates was in the theater, a fellow teacher at the church
school.

On Monday, I went back to work
and Pastor Bismarck called me in. He said, "I have heard a very disturbing
thing and I want to discuss it with you."

I was fired on the spot for being
gay. They "preaccused" me of things they thought I would do to
schoolkids-molest them or corrupt them. They said they had to fire me to
prevent that. I lost both jobs within ten minutes, and all my positions within
the church. My boss took me to my parents, and told them he had seen me
"growing gay." So then the problems with my family began as well. That was
the most painful and important incident about being gay, which made me realize
who I am.

My life in church was like I was
in a marriage, and got jilted by the husband. Christians shouldn't act like
that. I always want to tell people, don't expect sympathy from the church if
you are gay.

I was suicidal for about a month.
I attempted to commit suicide; but my friends found me and revived me.

I had heard on and off about
GALZ, and wondered whether to join. I finally called them, after hours of
agonizing. I didn't tell them my story, just asked to join. They told me about
GLOM here [Gays and Lesbians of Matabeleland, a small, newly formed Bulawayo
group associated with GALZ], and I got involved.

My parents wanted to ignore the
whole thing. For two months the issue was never mentioned at home. My mother
stopped speaking to me. But by May I was involved with gay parties and
functions in Bulawayo.

In June I fell in love. We made
the mistake of being too careless. We did the kinds of crazy things you do
when you are in love. Bulawayo is a small city and my mother was well known.
My elder brother's girlfriend saw us kissing in town. This was the beginning of
the biggest family problems at home.

My parents were told. They
wanted to chase me out of the home. When they decided they couldn't do that,
they banned me from leaving the house. I was in college again after losing my
job, taking computer courses, but I had to drop out because I couldn't leave
home to go. My father, my mother, and my stepfather all tried to force me to go
to the rural areas for forced marriage, and to receive treatments to drive out
the spirits. They finally gave it up: but they kept a close leash on me. In
July/August I decided to move to Harare, to stay with GALZ. I had to find an
excuse to leave town, and finally I told my parents I had a training course in
management; a friend forged a letter of invitation.

Slowly, while I was away, my
mother was coming to accept my gayness. I only came back to Bulawayo in
December. I came back to look after my mother, who was very sick. My elder
brother couldn't-he was a soldier in Gweru.

But then my mother got extremely
ill, and my relations took advantage of the opportunity to chase me out of the
house again. So in January 2000 I was on the streets again.

I was very depressed again. I
moved out of the house permanently, and became a heavy drinker. My home became
the nightclubs; in the day I slept at my friend "Teresa's" place. I went way
down below zero. I became down and out, in the dumps, as we say in gay
circles. I was very promiscuous, in and out of everybody's bed, leading a very
dangerous life. I began to realize the type of gay men we have in the city. I
had no contact with my family for a while; I stopped thinking about HIV/AIDS; I
knew all the blackmailers. I attempted suicide again.

The time when "Teresa" was
blackmailed and arrested was very hard for me [see Chapter III]. That was when
I first realized how homophobia was everywhere around us.

There was a time in March 2000
when the police tried to arrest me and a friend of mine for standing outside a
nightclub, the Sun City club in Bulawayo. There were plenty of men lined up
outside the nightclub. But they singled me and my friend out, and wanted to
arrest us for "soliciting for prostitution." I stood up for myself: "You
cannot do this to someone just for standing outside a nightclub, and say it is
soliciting." Being articulate and aware of my rights helped to save us.

I had always been beaten up by
other boys for being too much a girl. And it got worse as I grew older. Even
prior to joining GLOM I was beaten up one or two times a month. When I was
still working for Pastor Bismarck I went to visit my grandmother in the
locations, and I was beaten up by a pack of guys who called me gay.

But when I joined GLOM it really
got bad. They hated to see groups of us gays together. In July 1999 "Teresa,"
Lionel, and I had gone on errand to hand-deliver mail to some GLOM members in
the locations. It was around 8:00 in the evening in Entumbane [a high-density
suburb of Bulawayo]. A mob of people, ten or fifteen of them, started chasing
us, throwing stones and calling us names. They were still a ways away when
they started throwing stones, and we managed to escape: we ran and hid in the
bushes.

And one Sunday morning in April
2000, in broad daylight, Lionel and "Teresa" and I were walking near the Pie
City in the center of town. I got hit by three guys who said, "You are gay, we
have seen you in the clubs." And to me they said, "You thought you were too
good to talk to us." They hit me and I hit back. I got a burst lip and lots of
bruises. I went to the police and reported it at Bulawayo Central. They seemed
helpful at first; but they never followed it up.

I would keep on reporting to the
police when I am beaten up again. Why? Because I believe it's my right and
their duty. The same group of people do it again and again. I want them to
know we are not afraid. We can use open spaces, be it hospitals or streets or
police stations. We can use those spaces freely.

A lot of bad things happen here
around the GLOM Center-we rent this house on the line between two districts in
Bulawayo, with Bellevue on the one side and Nketa on the other. Bellevue is
lower-density and more peaceful, but Nketa is pretty rough. There are a lot of
young guys there with time on their hands. They know the center is here, and
they hate us and harass us all the time.

"Teresa" and Dominic and I had a
mob come after us in June 2000, trying to beat us up for being gay. It was 7
or 8 p.m., after dark. There were about thirty of them, some with bricks,
sharp objects, chains; others were throwing stones. "Teresa" had to jump in a
moving vehicle. Dominic and I ran in opposite directions. We had just come
from the shops-we used to go to the nearest shops, in Nketa, back then. We have
stopped going over there since; we will walk the two kilometers to Bellevue to
shop instead.

My mother died in April. I
wasn't there, I didn't know.

Life is hard. I realize how many
people hate us for being homosexual, even our own blood. And I have to wonder
why.

By now everyone in Zimbabwe knows
that homosexuality exists. If you ever went to a boys' school or stayed in a
hostel, and say you never played "hide under the pillow," you are lying. At
boys' school there was always a homosexual performance going on. It just was
not spoken about. I was known as the queen of the school. I used to have boys
carry my bags to my next lesson. They would come for sexual favors, of a sort.
"Disgusting," some of them would say by day, and tease me; and at night they
would say, "Let's play Wrestlemania II!" and we'd rub our private parts
together.

Men can do anything! The things
I've proved and seen. At church I saw all the secrets. It's not the sex they
hate us for, it's our freedom about it, freedom to be womanly, to be what we
are.

They can beat me up, but I will
get up and walk down the street. And there will be more and more liberated
queens, as we liberate what is inside all the people of Zimbabwe. I believe
Chaka was gay, the greatest African leader in southern Africa. It has always
been there.

I want to help empower gay men.
The stigma is within us, the violence is within us. I want the future
generations to find things better: not worse laws, worse politicians. That is
my dream.[287]

Carlos Mpofu died in 2002.

B. Visibility, Violence, Discrimination

Carlos' story illustrates the
threat of abuse that many self-identified gays and lesbians face. It shows the
multiple spheres in which violence and discrimination can be found. State
authorities, under such conditions, have an obligation to respond¾to offer redress for violations, and to
punish the offenders¾but also to
prevent violations, by supporting and sustaining an atmosphere of respect for
rights and understanding. Carlos' story indicts the failure of the state to
act.

Throughout southern Africa,
wherever sodomy laws survive and politicians exploit homophobia, self-described
gays and lesbians have struggled to win political and social visibility. In
some places they have achieved triumphs. Gays and Lesbians of Zimbabwe (GALZ),
for example, has carved out a place for itself and for its constituences in the
political sphere: and it can rightly take credit for creating a new sense of
tolerance in some urban and educated circles.[288]
Even many successes, however, have been mixed blessings. Consciousness has
been raised; understanding often has not. The idea that gays and lesbians
exist has (with the help of state leaders' rhetoric) been hammered into public
awareness; but often this has fed the suspicions of neighbors, parents, and
strangers alike, encouraging each to hunt down traces of homosexuality in their
communities, vicinities, and homes.

In many places, non-state actors
continue to act out the mandates given by state leaders: to "eliminate" gays
and lesbians, to treat them like "animals," to "fight against the enemy," to
"condemn" and "reject" homosexuals. Those who hide their difference still find
the fear of violence haunts them.

Looking back on the last twenty
years in her country, Tina Machida traces a dangerous transition-from a time
when same-sex relations were fitted, however uneasily, into existing
categorizations of kinship, to a time when they have come to represent
everything threatening those traditional ties:

In the 1970s and 1980s, people
were walking in same-sex couples in public all the time: it was no problem.
People called them "aunties," "cousins." They didn't know the words "gay" or
"lesbian" and didn't come out in response so strongly, so violently.

But now lots of people are more
aware of what is going on. After the visibility came suspicion.

There is lots more gay-bashing
now than before. On the other hand, when it comes to family, some families are
actually trying to understand. If there is someone who can educate them, talk
to them, some families are willing to listen. But not all. Sometimes there is
no one to do the teaching. And some families just chase away their children
without hearing a word.[289]

This chapter will describe how
violence and abuse are inflicted, and how they are felt, in a range of spheres:
in the community; in other spaces, including workplaces,
churches, and the gathering places where gays and lesbians can meet; and in the
family.

1. Violence in the community: punishing vocal
dissidence

In southern Africa, gay, lesbian,
bisexual, or transgender people who speak out-whose identities and difference
are known, through the press or through their political activity-may find their
physical safety or even their lives in danger.

Three stories from Zimbabwe, where
the political visibility of gays and lesbians has been perhaps highest but
hardest won, show the pattern.

a. Poliyana's story

When Poliyana Mangwiro of GALZ
looked back in 2000 on her long and courageous career as a lesbian voice and
organizer, few things were more memorable than her coming out, which she called
"one for the history books":

In 1996, at the second book fair,
I came out to the Zimbabwean public and to my family. I didn't know it would
cause so much controversy! I just wanted to get up and say who I am. I came
out in Harare Gardens, in the press … with everyone talking about ngochani. I
never expected that.[290]

Poliyana was a volunteer at
GALZ's stand at the Zimbabwe International Book Fair. As already described
above, GALZ's participation was embattled on two fronts that year, facing
challenges from the government as well as threats from hostile onlookers.
Friday, August 2 was a public day at the fair. GALZ was soon forced to abandon
its stand by menacing crowds. Before then, however, Mangwiro was photographed
at the stand by the press, as well as by students who were visiting the fair
from the high school in her home community, Marondera, a small town some
sixty-five kilometers from Harare.

According to Mangwiro, the
students "took the pictures they had taken of me back home and showed them to
the ZANU-PF Youth League and the [ZANU-PF] Women's League."[291]
Mangwiro had been active in both, and the chair of the former. Outraged, the
group members organized a frightening reception for her on her return.

On August 3, Mangwiro took a bus
back to Marondera, arriving in the evening. "There were a lot of people by my
lodging, singing and waving placards written with pasi nengochani [down
with homosexuals]. They were threatening the owner of the house where I stay,
wanting her to throw me out or they would destroy the house."[292]

Mangwiro's family had already
left. The crowd began to threaten her with physical violence. She left the
scene, found a public phone, and called Keith Goddard, GALZ's programmes
manager in Harare. "I told him my life was threatened."[293]
Since the phone was near the municipality offices, she also went to see the
governor, Edward Garwe. "Governor Garwe advised me to leave Marondera for a
while until things became more settled."[294]

The demonstrators prevented
Mangwiro from entering her home to get her clothes or belongings. They pursued
her to the bus stop, "shouting and throwing stones, humiliating me until I got
in the bus."[295]
She returned to Harare, where GALZ lodged her in a hotel for a time; she then
stayed with relations in other rural areas for two weeks.

When she eventually returned to
Marondera, she told our researcher, "nothing happened now: people just pointed
fingers on the streets, and said 'That ngochani,' so that I could hear,
or: 'Are you still with your girlfriend?' But neither the tuck shops nor the
main shops would sell me anything." Although she had an account with Topics, a
large chain store, they refused to allow her to settle it: "They said they
wouldn't take gay money."[296]

Mangwiro stayed part time in
Marondera for several years, moving back to Harare in 1998. "Toward the end in
Marondera, people were OK, coming to me and asking about my girlfriend, but
genuinely this time. But I was still very scared to go out at night, ever."

Mangwiro saw signs of hope in her
experience:

It showed that people need
someone to educate them about homosexuality. Now they say, "We know what a
lesbian or gay is, we didn't before." But you can't educate through normal
channels, like schools: they will say you are recruiting. I believe you can do
it though HIV/AIDS work. It helps to raise the issue.[297]

b. Dumisani's story

Dumisani Dube, twenty-eight when
our researcher spoke to him in 2000, tells a similar story of how publicity
awakened public paranoia. Formerly a teacher, Dube joined GALZ in 1998 after
attending a safer-sex workshop, and quickly became a leader, serving as
volunteer publications officer. In 1999, Dube bravely decided to give a
newspaper interview about his homosexuality and his work. He did so, he says,
because "I wanted to work for the day when homosexuality can be accepted not as
a lifestyle but as a life. Some people think that gays are only black people
who sleep with white people for money. A lifestyle is something you choose to
get into. A life is something you are born with, something that is in you,
something that is natural."[298]

The interview, with Dube's photo,
appeared in September 1999. It was generally sympathetic:

The charming and confident 17
year old [sic] Dumisani Macdonald Dube describes himself as a man who loves
other men.

"In short, it means I am gay and
that's no easy life in Zimbabwe, where homosexuals are being scorned," says
Dumi, one of the few Zimbabweans who have broken the silence about their
sexuality.

Dumi who has a BA degree in
industrial psychology from South Africa has refused to be a prisoner in a
society which does not still tolerate same sex relationships. He says, he is
not different but merely misunderstood, discriminated and victimised. And he
is challenging people's perceptions everywhere.[299]

About two weeks later, Dube says, "the problems started."

I was living in Highfield [a
suburb of Harare]. I had a friend-he was not gay but he and his friends knew
I was gay. He used to come to my house for a couple of drinks.

Then suddenly one day his sister
appeared in front of my gate and started shouting. It was a weekend, my
landlord had gone to the rural areas. She had brought some of her friends
along, and a couple of them were real thugs. She was shouting, "You
homosexual, don't talk to my brother! I want this homosexual out of the
neighborhood!" A crowd started to gather.

One of the thugs, he tried to get
in the house. The door was locked, so he kicked it in. I ran away, out the
back door. They got hold of two of my friends; one was my partner. They broke
his spectacles, and they beat up the other guy around the head till he was
bleeding from the forehead.

When the landlord came back, he
made me move out of the house. One of my friends told me, "Don't go into town:
we hear people saying in the shops, 'If we see him again, we will beat him.'"
So I stayed with my grandmother and uncle; then some of the same people came to
tell my grandmother that I was gay. My uncle was also against that. He started
shouting. He would get drunk at night and scream, "I don't want to stay with
a homosexual, homosexuals out of my house." So I had to move again and I went
to stay with a cousin in Harare.

That was also in Highfield. Then
one day ten guys came to the house, including a brother of that guy whose
sister had started the trouble. They said, "We want you to come to our house
and apologize to the mother of this guy." They were very threatening, so I had
to go. I went with my cousin's brother's wife, for safety. They were
threatening to hit me all the way. I had to apologize to the mother for
talking to her son, and say: "I am gay but don't worry, he is not gay."

On the night his door was broken
down, Dube went to the police station in Highfield to report the incident.
However, "The sister and the guy who kicked the door down had told me that they
had gone to the police too, to report me for being gay." Dube says he was
"nervous" about contacting the police. However, officers said they had
received no reports of homosexuals in the neighborhood.

The next day I also went to
Harare Central Police Station to report about it. I wanted them to make the
guy pay for the breaking of the door, since my landlord was making me pay for
it. I gave them the names of the offenders. But I never got a response,
though I have gone back several times.

Dube and his partner took extra
precautions after the incident. "We were living separately but we spent nights
together. But every time we returned to where we lived, we took a very long
way. We didn't want people to see us walking together in public."

Dube says,

Lots of gays are abused. If the
police would cooperate, GALZ would have a way of breaking through to courts and
getting some punishment, or protection: but police don't act because they are
afraid of standing up for homosexuals. If a policeman stands up for
homosexuals, they will say, "You are homosexual yourself." Because of the
state of homophobia, giving counselling to people who have been through
violence is all GALZ can do.[300]

c. Ska's story

In 1999, the Mugabe government in
Zimbabwe created a Constitutional Commission to revise the country's nearly
two-decade-old constitution, which had been negotiated at the end of the
liberation struggle. The so-called Lancaster House constitution had been
successively amended to increase the power of the executive and diminish
opportunities for opposition. The commission was Mugabe's response to pressures
from a broad civil society coalition to replace the document with a more
democratic one.

It quickly became clear that the
process was unlikely to accommodate those demands. Mugabe packed the
commission with supporters of his ZANU-PF party; in response, the coalition
which had pressed for change refused to participate. However, GALZ chose to
request a voice in the process. It had little hope that the commission would
produce a progressive constitution, but wanted to call the government to
account on its promises that new protections against discrimination would be
included. GALZ received no response to its request for a place on the
commission.[301]
However, it produced a detailed submission on sexual orientation and human
rights. It also sent four of its members to testify at a commission hearing-a
historic opportunity to stand up and speak out.

Sikhanyisiwe Ngwenya, a
twenty-three-year-old lesbian, was the first representative. Predictably, her
speech, short but unequivocal, did not just set a precedent¾as the first address by an out black lesbian
to a political gathering in Zimbabwe¾but
sparked an uproar. When the slight but strong-voiced Ngwenya introduced
herself and said, "I am a Zimbabwean lesbian," the outbursts began. "All
Satanic!" some shouted. "We do not like that in Africa!" When the chair
called for order, hecklers cried, "No order with lesbians!"[302]
With difficulty, Ngwenya went on to say:

I would like for the new
Constitution to include the rights of lesbians in Zimbabwe. Zimbabwe as a
nation must accept the fact that there are lesbians in Zimbabwe from all races
and creeds and I am one of them.

Discrimination against women is
high in Zimbabwe and as lesbians we are made to suffer even more than the
ordinary women. As a person I have the right to my sexual preference and that
should not be used to discriminate against me….

Nobody taught me to be lesbian.
I have always been lesbian and always will be lesbian. I knew I was lesbian
when I was 12 years old. I have no problems with being lesbian and I am proud
to be a black lesbian in Zimbabwe. Many people say that people like me don't
exist. Well, here is living proof that we do and I am not the only one.[303]

Our researcher spoke to Ngwenya,
known to her friends as "Ska," some nine months after her historic
appearance. She said,

I've been out for years now.
It's been great, but there were a lot of problems. People and the government
don't understand.

It was great for myself and for
other gay people when I came out as a black person who was a lesbian. People
started to realize that we are here.

I came out to myself and to my
friends-not to my parents-before the Gay Games in 1998. I got a scholarship, I
went to the Gay Games to play. I play soccer and I just told my father that I
was going to Amsterdam for a soccer match. Someone told him what kind of match
it was. After I got back from Amsterdam I was kicked out of the house.

My father was eventually
transferred to work in Bulawayo, and my mother told me then to come back home.
Till then, I stayed with an auntie. But that wasn't all that happened. I
played for the national women's soccer team. And then I was fired, kicked off
that, at the end of 1998. The coach came to me and said, we've had a meeting
about you-the chairperson, secretary, treasurer, and coach of the team-and you
are a lesbian and people know it and we do not want people to think that all
women on the team are lesbians. He said, we do not think it is right for a
woman like you to be on the team. He wouldn't put it in writing. Keith
[Goddard] told me to ask for an official letter, but they refused. I thought
about something legal, but suing would not have helped. You know, the
government here hates homosexuals.

My mother was supportive then. I
stayed in her house till the end of 1999 when I appeared before the
Constitutional Commission. I decided to go and present on behalf of gays and
lesbians.

I testified before the commission
because I wanted the people of Zimbabwe and the world to know that there are
lesbians in Zimbabwe, that we do exist. I wanted to fight for my rights. I
came out a lot then: I was on T.V., in the newspapers, on CNN and the BBC.

When we started to present our
case, some of the commission were shouting, "You are not normal." There was a
big uproar. The head of the commission said, "Be quiet, we invited these people
to give their presentation." But they wouldn't shut up. It wasn't a big
audience, forty or fifty people. But some of them were supportive: they
actually clapped when I was done.

But my father had moved back into
Harare then. He kicked me out afterward. He beat me up bad, and told me to go
away. I came to stay at GALZ.

It was really uncomfortable; I
had no money. I moved in with an American friend for a while, but she went back
to the U.S. and I was stranded again. Now I still live at GALZ.

After I came out on T.V., four or
five days later, I was coming home from Arcadia one evening around 9 p.m. There
is a hotel called the Hotel Elizabeth. These two guys come running up to me on
the street outside the hotel. "We are policemen. Show us your I.D." I said,
can you show me something to prove you are policemen? They laughed.

No, I don't believe they were
police. They decided to beat me. One was holding me, one was slapping me.
They took Z$1,400 [U.S.$40] and my I.D. And they were saying, "You lesbian, we
know you, we saw you on T.V. What do you want, our girlfriends, our wives?
What do you think they will think of you? Aren't you ashamed of yourself?"

I went to the police in the
morning, Harare Central. They said, "Why didn't you defend yourself?" That was
all. There was nothing I could do. The police knew I was a lesbian. When we
started the GALZ office, they would come to it every day, almost. The officer
knew me. There was nothing I could do.

I didn't go to the doctor because
I didn't have money. It happens often to GALZ people, you are beaten up by
teams or pairs of guys. When you go to the police, they do nothing.

The other time it was bad for me
was after Peter Tatchell [whose attempted citizen's arrest of Zimbabwe's
president in London in October 1999 is described above]. I was in town in the
CBD [central business district]. It was about 4 p.m. These other guys, I
think they knew me from T.V. They started shouting at me, "Our president has
been arrested in London because of gay people in Zimbabwe. You are sending
these people to attack our president. We are going to kill all you gays in
Zimbabwe." They came after me and they were going to beat me, but I ran away.

People here know me, they know I
am lesbian. Sometimes I am very scared to go into town; I try not to walk or
travel by myself. If I try to find a job, I can't, because everybody knows me;
I can't find accomodation either. It is very hard.[304]

2. Violence in the community: policing visible
difference

Mangwiro's, Dube's, and Ngwenya's
stories exemplify the consequences of speaking out. Yet one does not need
media attention to incur community harassment: the dubious celebrity which
photos or headlines confer are not the only routes toward facing retaliation.

Communities throughout southern
Africa monitor the behavior of their members. The daily lives of gays and
lesbians exist under a collective scrutiny which is always intimidating, and often
directly menacing. Many tell stories of how "the people you hang around with";
appearance or behavior, one's "walk" or "look"; or simply the power of rumor
are enough to make one suspect, and mark one as a target.

In Windhoek, Namibia, Wendell, a
young gay man, speaks of how he has learned to censor his own behavior-and even
his purchases:

You know, we don't have things
like gay-friendly bars, gay-friendly shops-we don't have things that are very
gay-friendly here in Namibia. Even if you want to buy a feminine kind of pants,
you have to say you know this is for my girlfriend that I'm buying-that's
really sad, really sad.

I cannot even wear the clothes I
want to wear, whether it be very tight jeans with a tight top or whatever. I
can't-I have to be choosy whenever I go to a shop…. It is kind of depressing
just to go through all those processes-you know, you have to pretend in order
to be in safe surroundings. We've been doing a lot of acting.[305]

Certain places, you really have
to put your gay attitude to one side, because you really think this is not a
safe place. And then you have to really try to look like a boy. "Oh, you
don't smoke?" You have to take a cigarette and act like one, you see. And then
walking down the street, you will get two or three guys telling you, "Moffie!
Moffie!"[306]

Two factors were often cited as
contributing to community violence and harassment: first, the populist power of
a rhetoric of cultural traditionalism; and second, the rigidity of norms of
gender.

Paul, a student in Zimbabwe,
spoke of the first in describing to our researcher how tradition turned to
exclusion:

Mugabe says he is only trying to
follow African traditional culture. But in that culture parents wouldn't throw
you out of the home because you are gay, neighbors wouldn't beat you up for it.
I think what is traditional is simply not to talk about it. Mugabe was the one
who started to talk about it. What is traditional would be to turn away and
close your mouth.

But now it's all different. Some
parents would say, this is a Western thing and would disown you from the
family. They would chase you away from home. Some families and communities
have lost their identity, don't know whether they live in an English way of
life or an African way of life. Older, middle-aged people-for them we gays
stand for something they have lost. They look at us and think they see all
the reasons they have lost it.[307]

The fear of being marked as a
cultural outcast is profound. In Namibia, again and again, people we
interviewed returned to the president's threat to deport them, which seemed to
symbolize the devastating state of being written out of a community. Derrick
told us:

They say that gays and lesbians
must be eliminated from the face of Namibia…. And when I hear that on the
television, me and my parents were watching there, I could just see the
atmosphere in the house was not that nice. I stood up and go to my room and I
was really crying, not crying, but I could feel the tears on my face-it was
like a slap in the face.[308]

Wendell, in Windhoek, says:

When I first heard it, I was very
afraid because of the fact that they want to deport us…. I thought about my
friend that I know that teaches, and these friends who are engineers, and I was
thinking now if people are removed from these places, what happens to society,
what happens? And I even thought about myself,… well, if I'm taken away, how
is this going to affect my family, how is my mom going to live with that,
seeing that her son is being taken to another place, and she has to say yes to
that because of the government thing.

At first I was very afraid. But
then I decided for myself that I would not mind if somebody would come to
attack me or anything. I would just say I'm still gay and it is what is within
me. I should not hide it. I have lived my life as an open book.[309]

Lesbian, gay, bisexual, and
transgender people in southern Africa also affirm, again and again, that words
exist in their indigenous languages to describe them. Those words may not be
synonymous with "gay" or coterminous with the concept of sexuality; some of
them may describe acts and not identities, or ritual functions rather than
modern social roles; but their existence at least shows, people argue, that the
conduct did not come with the colonial invasion. And to many, that is a
crucial reassurance.

Francis Chisambisha says that in
Zambia's Northern Province, a man who had sex with men was called chimbusi
kayupe-"a male hyena which marries itself." In Botswana, Ronza says that
"I am a Tswana. In our culture, they have got a name for gay. They call
it-it's a bit vulgar-they call it a matanyola.But there is no
word for women, that word is for men." A leader of Botswana's LEGABIBO adds,

I find it strange-these claims
that homosexuality has never existed before the white man came. But there is
actually a word for that in Tswana. So where did that word come from? The
word that they use, the old proper Tswana word, is matanyola, which
basically just means anal sex. In fact, most Botswana guys who are straight
will engage in certain circumstances in bi sex, because they don't think of it
as being anything, just doing it. It's been going on for centuries. But the
word that is being used now is just "gay."[310]

One Namibian writer asked his
father about the meaning of the word eshenge in his mother tongue,
Oshiwambo:

After a giggle of embarassment,
my father replied. "He who is being approached from behind." I could hear my father
praying that I wouldn't ask for an explanation. "Did you also grow up with
them, or did they only appear in our generation?" I asked.

"They have been around-since the
beginning of time!" my father replied. "These are people who were created by
God, and they should just be left alone!"[311]

Ramashala, in Windhoek, insists
that, in Namibia's cultures, "Homosexuality was there, it was there in the
beginning and it's still there today-and will continue to be there tomorrow."
Yet he also looks to broader solidarities: asked by an IGLHRC interviewer, "Do
you think being gay is an African thing?" he says, "No: being gay is a global
thing."[312]

Beyond the rhetoric of cultural
exclusion, a second key factor behind the assaults is gender-the policing, and
punishment, of people who do not behave as "men" or "women" are supposed to do.
The kind of sex the victims have may matter less than their looks and
demeanor. Our researcher asked Carlos Mpofu why he believes he has been the
object of physical attacks: do his attackers target him for what they believe
is his sexual behavior, or for the fact of his effeminacy?

I think it is both. Some of
them, when they see me or "Teresa," think, "He is walking like a woman, he has
sex with men." With others, it is an ego thing. They think, "I am a man, he is
acting like a woman, he is insulting my manhood." It is all about their ego at
the end of the day.

But the second one is
predominant. By now everybody knows there is homosexual activity. Some of the
ones who beat you on a Sunday have been doing it on a Saturday night! But they
still think they are men. It is the effeminacy they object to. I am a
liberated queen, and I enjoy flaunting it.[313]

Being a "liberated queen" is an
important part of being "gay" for many gay Zimbabwean men. Within GALZ, a
group of "liberated queens" have formed a sub-group called "Chengetanai"-in
Shona, "to take care of each other." It is for men who claim the right to be
effeminate by society's definition, in manner or in dress. Each October, GALZ
and the Chengetanai hold a drag pageant to choose a new queen of drag queens,
the "Jacaranda Queen"; it is, several people said, "the event of the social
season."

Yet, while the aspiration of
Zimbabwe's queens is, as Carlos Mpofu said, "to be liberated everywhere," few
have the temerity, under the pressure of hatred and the threat of retaliation,
to express themselves fully anywhere except behind closed doors. As one queen
told our researcher about the Jacaranda Pageant, "It's so wonderful because for
one day a year we can be who we really want to be."[314]
The rest of the time, the minutiae of personal appearance can be met with
random violence.

Nhlanhla N., twenty years old in
2000 and living in Bulawayo, had not-yet-found or joined the "liberated queens."
He had only recently discovered the GLOM office as a safe space and resource,
and it was there that we interviewed him. Nhlanhla says, hesitantly and slowly,
"The problem I have is people teasing me and wanting to beat me up because of
my sexual orientation." Asked what he means by "sexual orientation," he says,
"I am like a girl. I am a sissy." Although he identifies himself as "gay,"
the sense of not fitting into the norms of manhood is his strongest feeling of
non-conformity, and viewing himself thus, rather than realizing his sexual
desires, seems to have constituted his "coming out" to himself:

I'm greatly talked about in the
neighborhood, and it makes me afraid. Because I am sissy I get harassed all
the time. Men in my neighborhood see I am gay because of the way I walk. They
make passes at me, get fresh with me, and want to sleep with me. I have been
identified like this since I was fourteen, till now.

My mother knows. But people tell
her bad things about me. They tell her I am soliciting, that I am a
prostitute. My mother is sometimes confused, and she condemns me for doing
these things. She blames me for being gay, but doesn't like to talk about it.
But people go talk to her.

There is one person, my neighbor
next door, who has it in for me. She always shouts at me when I pass, saying
"Why don't you get married, or have a girlfriend?" I'm afraid she will set
somebody on me. She threatens me; her husband is a policeman, and she says
she'll tell him to arrest me. She says she will call young boys to beat me up,
and "That will stop what you are doing."

That's how I feel all the time,
being sworn at, threatened. I am always by myself.[315]

One rare person in the region who
has built a life around crossing gender norms is Musonda Chitalu in Zambia.
Our researcher interviewed Chitalu in July 2000. Born female in 1974, and
named Janet Chitalu, Musonda has adopted a new name and now identifies as male.
He now wears only men's clothes-and has become almost as notorious in Zambia as
was Francis Chisambisha, the subject of newspaper articles as well as the
object of harassment and discrimination. Many people in Zambia, when told that
Human Rights Watch was investigating "gay issues" in the country, knew that
notoriety through the press, and told us to find "Janet Chitalu."

Chitalu does not see himself as
"gay" or "homosexual." He might be identified, in the United States or Europe,
as a "pre-operative female-to-male transgender person." Yet the category does
not quite correspond-not least because, in Chitalu's story, it was society
which identified him as unnaturally masculine while he persisted in believing
himself to have a female body. By his account, interpretive codes which
viewers imposed on his physical appearance re-cast him as a man, though for a
long time he wanted to remain a woman. There is no clear medical or social
category for Chitalu in contemporary Zambia. He is uncertain of how to define
himself. Although he says "I am a man," he also calls himself a "hermaphrodite"
and "intersex," terms acquired from doctors who may themselves have been unsure
of their meaning (see below). What is certain is that Chitalu has lived his
life, despite hardships and harassment, with extraordinary individuality,
self-confidence, and courage.

Musonda/Janet was born in
Nchelenge in Luapula province. "I started realizing as I was growing toward
thirteen that my development was different," he says. "I had no breasts, my
body was so physical, I looked muscular like a boy. My brothers and sisters
were mocking me all the time." Musonda-who is short-haired but could otherwise
pass as a woman on the street, save for his clothes-is reluctant or unable to
identify these differences more exactly. He told both our researcher and a
newspaper interviewer that "I had the inner conviction that I was a female";
but Chitalu began wearing men's trousers from time to time "because they fit my
body better."[316]

Chitalu attended Matero Girls'
Secondary School, a boarding school in Lusaka, and was a prize-winning runner.
However, "people started doubting my sex," he told our researcher, and dropped
Chitalu from the girls' running team. After two years, a new headmaster came,
and he "rejected" me, Chitalu says: "There was no proper reason, he just chased
me out when I came to sit for the exams. And the next day when I came back he
told me I was a freak and told me he would call the paramilitary police to
chase me out."

Chitalu spent two years out of
school. In 1992, at seventeen, he was readmitted to another boarding school
near Nchelenge. Though still insisting he was a woman, Chitalu says, he was
not believed:

The headmaster there didn't want
to admit me because he wasn't sure if I was male or female. He suggested that I
go to have a medical test in order to see. When I refused, he said I was
"disloyal." He only admitted me when my father went there and threatened to
sue. And he only let me in on condition that I wouldn't live in the school.
So I had to squat in the village in a place with no electricity, so it was very
hard to study. The headmaster was always finding excuses to put me on
suspension, because he wanted me out of there. But I pulled through and I got
my certificate.

In 1995, Chitalu moved to
Lusaka. "Things were not so easy. I stayed with my sister at first and then
she threw me out. There were always problems on the street and road, I always
had rocks thrown at me." [317]

Chitalu cannot say exactly when
he decided that he was not a woman but a man. However, a traumatic event-which
he described, in tears, to a reporter in 1998 as "an incident I will never
forget"-may have played a part.[318]
Chitalu did not cry while retelling it to our researcher, but his emotion was
evident. A group of kaponyas or street toughs grabbed him in a market.
He was still wearing women's clothes at the time; they accused him of
impersonating a woman. "They held me down and pulled down my knickers. It was
awful," Chitalu told us; he told the reporter that "I'll never forget the
anguish and humiliation." After that, Chitalu swore never to wear women's
clothes again.[319]

Chitalu was noticed on the street
by a reporter from the Times of Zambia, who did a story about him in
1996[320];
after that, a women's NGO briefly gave him a job. However, for the most part "I
had no money and no employment." In 1998, Chitalu legally changed his first
name from Janet to "Musonda"-a name he says is used by both men and women-and,
astonishingly, changed his registered sex from female to male as well (his I.D.
card indeed lists "Musonda Chitalu" as male). Chitalu says, "I had to go before
a court to do it by deed poll. It was difficult and they didn't want to do it
at first, until I produced medical papers."[321]

The physician Chitalu saw before
the court hearing put a name to his "condition" for the first time. The doctor
used the word "hermaphrodite"; another doctor, later, referred to Chitalu as
"intersexed." Intersex is a term used in many countries to refer to people who
are born with anatomical or physiological characteristics which do not conform
to social or cultural norms of what is male or female.[322]
It is unclear whether the doctor used the term in this sense or was fully
informed about the meanings of "intersex[ed]."[323]

Chitalu's story points to the
difficulty of imposing an identity derived from European or American models on
individual experiences shaped by a different cultural context. Largely on his
own, Chitalu has negotiated an identity for himself between a sense of
difference derived from others' disdain, and a powerful inner sense of being a
"normal" human being with dignity and rights. What is also certain is that
this negotiated identity now revolves around Chitalu's wishing to be treated as
male.

According to Chitalu, doctors
recommended a "sex-change operation," or sex reassignment surgery (SRS).
Chitalu went to the University Teaching Hospital of Zambia, and was told that
"the medical help I need" could only be found in the U.S. or South Africa.
Chitalu hopes to save enough money to travel to South Africa for such an
operation. He hopes afterward to be able to marry a woman. And he hopes to
work in, or found, an NGO supporting youth. His church, the Northmead Assembly
of God, has been extremely supportive, even writing a letter to the Ministry of
Health asking for SRS for Chitalu. "Without them and my Christian faith,"
Chitalu says, "I couldn't survive"; and Christianity indeed seems to have
provided him, from his early years, a definition of human dignity which could
transcend gender, and which would survive no matter whether he was seen or
named as female or as male.

Yet the harassment continues.
Chitalu's secondary school certificate still shows him as Janet; the National
Examinations Council in the Ministry of Education refused to change the name,
making his degree useless, and "it may take a lot of bribes" to get it done,
Chitalu says. "Boys still throw rocks at me when I go down the street, all the
time, everywhere." During the 1998 controversies over homosexuality in Zambia,
he was identified as "gay," and "that worried me," he said: "What would people
do?"[324]
And Zimbabwean border police detained and stripped him at the Chirundu border
post when he tried to visit Harare-this time, because they did not believe that
he was, as his identity papers said, male.

Musonda Chitalu resisted gender
norms in a comprehensive way. Others in the region find that small deviations
can still elicit violence. Peter Joaneti, a GALZ staffer, recalls that in
Harare,

One night early in this year
[2000] I was in a minitaxi going home. And the conductor asked me, "Why are
you wearing two earrings? Are you ngochani?"So I told him,
"Yes. Are you hetero?"

And he started beating me over
the head, right there in the taxi. I was afraid the other passengers would
start joining in. I managed to call on my cellphone to my younger brother, who
came and met the taxi and got me off.[325]

Tina Machida told us in August
2000 that "Just last week in front of a shop in Queensdale [a Harare suburb]
Fatima and I were attacked. Four guys came up to us and called Fatima ngochani.
I came to his defence and they shouted that at me too. They started to hit
us. We fought back, and they ran away. But they know that if we go to the
police, nothing will happen."[326]

And "Teresa," in Bulawayo, told
us,

In the afternoon these guys will
just shout at us, but after hours they want to beat us till we die. I have a
small scar under my eye: that was from the time in Bellevue East, when the mob
chased Carlos and Dominic [and] myself. I had a red eye for weeks after that,
where they hit me. They roam at night, with sticks and clubs and rocks. They
are not necessarily looking for homosexuals, but they are looking for trouble,
and a man with a swing in his hips means trouble.

It only takes one person to start
a mob. One of them sees you and starts shouting, "homo, gay, Banana [a
reference to the former Zimbabwean president conviced of sodomy]"-the
repertory.

Normally we don't go to the shops
if there is a case in the papers of "sodomy": we don't go around for a few days
after. If they see a screaming queen or someone who they think is a
homosexual, they will say, "You rape children." They think every gay man is a
pedophile-I mean, the people in high-density areas.

In low-density areas they are a
little more educated. They're more likely to leave you alone. There is also
an attitude in the low-density areas of respect for privacy: since you have a
little yourself, you respect it in others. It's a feeling of "It's not my
business": you shut the gate, you don't gossip with the neighbors. In the
high-density areas there is no privacy, so you cannot be let alone. "It's not
my business" means nothing. People gossip, and news and words spread.[327]

A researcher for Human Rights
Watch and IGLHRC experienced the harassment and danger personally in August
2000. While he and three GLOM members, including "Teresa," walked in broad
daylight down a road to the GLOM Center, a small rented house on the edge of
the Nketa high-density area of Bulawayo, a group of about seven young men began
shouting insults and pelting them with stones.

Behind the eruptions of violence
and the displays of discrimination lies a constant pattern of prejudice
manifested through name-calling and rumor. Andrew K. says that in his small
Zimbabwean town, Mutoroshanga, people "talk about me and gossip about me.
Sometimes they call me queer and shout at me on the streets, calling me dog, ngochani,all those things." He has only discussed his sexuality, gingerly, with his
immediate family, but believes "the word has gotten out." He says, "It is OK
in Zimbabwe if you keep it private. It is not OK if it becomes public. But it
is very hard to keep it private. And then it is very lonely. I am intensely
lonely in the town."[328]

Justin, a student at a teacher's
college in Mutare, told our researcher that "Although Mutare is a small
community, the discrimination we face everywhere is also there."

It is in the streets, in the
college. Even though you try to hide, a few now know that is what I am. They
know it through the people I hang around with….

When people see someone with an
earring, or who uses makeup, or who has a strange hairstyle, they shout
"Homo." In certain incidents they shout at you across the street. They talk
all the time about homosexuality, in terms of "Are you a woman or a man?"
People at our college start shouting when papers carry articles about
homosexuality. They call out, "It's un-African, a white-dominated thing, these
people are possessed."

They believe that because
homosexuality is not talked about in African culture. They associate it with
people possessed by bad spirits. They think you should go to traditional
healers. Sometimes the healers will say, you should sleep with a young child
for good luck.

My friend is very feminine. He
prances like the chengetanai. He trimmed his eyebrows, curled his hair,
wore earrings. People call him sisi-in Shona, from the English. People
don't want to associate with a person who acts in that sort of way.

It happened to me. My friend,
the one who is too much feminine: people will shout at him [in] the street.
Last year, a group of schoolkids in the bus from a boys' high school saw the
two of us in the street while the bus was stopped at a robot [traffic light].
They were all shouting "ngochani"at us from the bus; people in
the street were trying to see who was being called that.

My friend is beaten up a lot. In
secondary school no one wanted to be seen with him; teachers didn't want him to
come to their offices, tried to brush him off. I was a prefect. People would
say to me, "Why do you, a respectable person, hang around with him?" It was
very difficult for him. [329]

Justin worries about the effect of rumor and stereotype on
his career:

If I become a teacher, I will spend
most of my time with kids. I am worried about the future. I will try my best
not to raise suspicions. But it also means trying to keep the kids from coming
physically close to me, or getting friendly. I will have to watch everything I
do, because someone could become suspicious. It means I will have to behave
differently from the other teachers: I can't have normal friendly relations
with students, because in my case those could be suspect.[330]

Tina Machida said the pressure
ruins relationships and families as well as individual lives.

You feel alone. It is not so
easy for lesbian couples to stay together, or gay couples, for that matter. To
stay under the same roof-people will suspect. Neighbors will want to know if
you are related. If the surnames are different, they will be curious.

In my house, we avoid the
neighbors, try to avoid them knowing more about us. But even if you don't have
a partner under the same roof, if you are seeing each other every day while
living separately, people will start knowing.[331]

The state provides little
protection. Many victims are afraid to approach the police. Chauta N., who
cross-dresses in Lusaka, Zambia, says,

In my neighborhood they are used
to me now. But elsewhere-Kamwala, Kabwata-they call me names, laugh at me. Sometimes
I'm beaten up. Those who are drunk, if you pass bars by the shops, they'll
stop you and beat you. I don't report it to the police, because the guys make
threats-they turn round before they leave you there on the ground and say,
we'll report you to the police.[332]

In Namibia, Ian Swartz says that
the police often refuse to respond when they see lesbians, gay men, or
transgender people attacked. Swartz himself witnessed a gang attack as he was
driving through Windhoek late one evening.

I saw a transvestite-she was
young and probably working the streets. I saw five young men jump her and beat
her to the ground. A police van drove right past it-they could not have
avoided seeing what was happening but they did not stop. I got the registration
number of the van. But when I followed up I could not find anything-the
hospital said no one was brought in, the police said there was no report and
even said that there was no van with that registration number.[333]

Two suspected lesbians who were
allegedly caught in an indecent position in Harare's Highfield suburb were
lucky to escape with their lives after an angry mob beat them up on Wednesday
afternoon.

The "lovebirds" were allegedly
parked at an open space on the suburb's fringes when small boys passing by
spotted them.

Amused by what they had seen, the
boys ran to nearby houses and called some friends to witness what was going on.

This allegedly aroused the
suspicion of a few women who followed the boys and spotted the pair in action.

The pair was saved by a policeman
who shepherded them into a passing car, which disappeared from the scene with
the crowd in hot pursuit.

Several people who called The Herald
described the women's actions as inhuman.[334]

Although the police apparently
acted appropriately in defense of the pair, police spokesman Superintendent
Wayne Bvudzijena reportedly apologized for their failure to punish the couple¾saying that "although what the pair is
alleged to have done was improper, the force's hands were tied as there was no
law against lesbianism."[335]

In a brief interview almost a
year after the alleged incident, Superintendent Bvudzijena was unable to give
Human Rights Watch and IGLHRC further details about the story. He said,
though, that the mob's reaction, "if true, would be a natural one." His
comments both then and earlier suggest a police force at least as concerned to
eliminate "improper" behavior from public space as to discourage "mob
violence."[336]

Nor are the courts more
sympathetic. In 1999, a Harare judge passed sentence on a man convicted of
stealing computer equipment from the GALZ Center. The magistrate, Edson
Musabanya, went out of his way to note that the accused "had not done himself
or his mother any good in associating with members of GALZ." He added that the
accused "knew full well what he was doing when he went merry making with the
gays and lesbians"; and that "Even if you say you had gone to the party to drink
beer only, you rushed in where angels fear to tread and for that you are a
fool." [337]
The comments were reported on the front page of the Herald.

In such an environment,
difference is under sustained threat, with little prospect of protection. Tina
Machida says,

If I stay in the closet, then I'm
safe. But it's a false safety-one person will suspect and tell another
person. So you think, why not fight for my rights! But if you do that, the
problems only multiply….

Nowhere is really safe. What can
you do to protect yourself? All I can say is, we try wherever possible to move
in groups.[338]

3. Violence and harassment in clubs and gathering
places

Derrick, a young activist in
Namibia, tells how, again and again,

Me and my friends went out to the
club and dressed really nice. And at the end of the day, we would be there,
beaten up. Because they would call us queers and blah, blah, blah…. Some clubs
are really difficult. It's dangerous really-it can cost your life, it can
really cost your life. But at some there are really nice, gay-friendly clubs….
But I think if you are a gay person and going to a club, maybe it's best if you
went with a car and if you leave early. It's safe it you leave the club
earlier. But if you are by foot or you mean to take a cab, it will be very
dangerous.[339]

Gay-identified men and some
lesbians throughout southern Africa recount stories of repeated attacks or
harassment at or around bars, pubs, and clubs. Incursions of sexual or gender
non-conformity into insular, male-dominated spaces are met by brutal
retaliation. One gay man confirms,

Pubs are a constant problem.
They do not want to share the space with gay people. Someone enters in a pub,
and if he sees there are gay people, he goes out. And sometimes he will wait
outside for you, to beat you when you leave.[340]

A preponderance of these stories
come from Zimbabwe. They seem also to reveal anxieties surrounding race and
class that are deeply rooted in Zimbawe's still profoundly stratified society.

"Wellington Ncube" says,

One of the worst problems people
face is going to clubs. They get attacked in clubs for being gay. But clubs,
the few of them that are friendly, are the only places you can go to have a
good time. And maybe meet another person who might be gay.

They are all straight clubs. You
cannot have a gay bar in Zimbabwe at this point. The majority of the
population is still too homophobic. We don't want to suggest that most of our
help comes from outside the community. If people see a gay bar, they will say,
it will influence people to be gay. And they would wonder where the money comes
from. The war veterans[341]
would attack: after all, they don't accept help from outside the
country. There is this obsession with influence, with anything that encourages
what they call the Western influence in our country.[342]

The fears center not just around
"Western" influence-but on the invidious impact, and scarcity, of money. The
division between gays and straights in Zimbabwe is often entangled, among
blacks, with another division between what are known as "clear beer" and "dark
beer" people-between men who buy bottled lager, and those who can only afford
cartons of cheap chibuku, unpasteurized dark beer. The brands are signs
of relative class and status, and increasingly are markers for masculinity.
One gay man says, "They call gays 'clear-drinkers,' because they think we get
money from white people to afford it." In mid-1999, he remembers,

In Mutare, I went into this pub
with my friend, who is also a regular patron. Two guys came up and said, "Can
you buy us some dark beer?" We refused, told them we didn't have money. It
was an excuse. I said to my friend, "We have to be careful, they might say you
are trying to seduce them."

But the guys saw that we were
drinking clear beer already. They said, "Are two moffies drinking beer here?
How do they dare?" They told some other guys outside. And then suddenly four
or five of these guys come in and gather around us and start harassing us.
"What are you doing here? Why do you drink beer like women do? You are
degrading our culture. You must get out." We didn't go back there for three or
four months.

One time the same friend, who is
very feminine, was beaten up in a beer hall. Guys are always coming up to ask
us for money. Because I have a job and I dress well, they say, "You must get
this money from sleeping with white people." From there, they start shouting.
And the trouble begins. [343]

"They think gay men have more
money," another man says.[344]
Gays are seen as "working class"-which in Zimbabwean parlance, amid massive
unemployment, means upper class, or comparatively wealthy because employed.

That identification is also
inextricable from the identification of homosexuality with whiteness. Wealthy
means white, in a country scarred not only by the recent memory of racist rule
but the continuing reality of inequality. As revealed in the testimonies
recounted in Chapter III, black gays in Zimbabwe are believed to have white
money in their pockets. "Teresa" says:

Some say, black men only sleep
with white men to sell sex. White people in this country, in the whole of
Africa, have done one really horrible thing, to convince people that being gay
means money.[345]

And another gay man says,
"Everyone has this misconception, that black gay men are just men who do it
with whites for money."[346]

Simbarashe ("Simba") Zwangobani,
twenty years old when we spoke to him in 2000, says, "Nothing is harder than to
be gay and friends with a white man. Usually everyone thinks 'gay' as soon as
they see you together. It's gotten that way: a white man and a black man
together are automatically assumed to be gay."[347]

Yet the presence of white men is
not necessary to incite harassment. Peter Joaneti says that, in 1999, at Time
and Place, a bar which had a reputation as "gay-friendly" at the time,

I was standing with a friend. A
certain guy came and introduced himself to me, and asked me to buy him a
drink. I refused. So he went over and told a friend of his that we were
homosexuals and he would drive us out of the club. There was a bartender who
was very homophobic, and he connived with them: I think he was tired of having
us there. So they got about fifteen of the customers together to attack us.

Inside the club they started
beating us. And they took us out on the street and called some street kids
over to come and help beat us. We got a taxi to take us to the police. We had
bruises all over our faces, our noses were bleeding.

At Harare Central, the sergeant
started off helpful. He told us if we saw some of these guys on the street we
should stop a policeman and ask him for help. Then I told him I was gay. And
one cop said, "You proposed sex to them, right? That was why they beat you
up." Other cops asked, "How could someone beat you up just because you
wouldn't buy them a drink?"[348]

Simba Zwangobani also remembers,

In May 1999 I went with seven
other gays to a club called the Rose and Crown. We were standing together and
a man started applauding and making fun of us, saying "You moffies!" And then
suddenly the whole club descended on us. We were beaten and thrown out of
there. It wouldn't help in any of these cases to go to the police. When
you've already been beaten up, you don't want to get laughed at on top of it.[349]

"Wellington Ncube" confirms,

We used to go to Time and Place
after GALZ meetings; it was very friendly at times. But this always changes.
Now it is unsafe. If we go there even in a big group, big numbers of straight
people will walk out. It's safe when they're gone, but sometimes they wait for
you outside. So you can't leave alone, you all have to leave together. But if
you go there in small groups, it is not safe.[350]

Romeo Tshuma, a longtime activist
and employee of GALZ, was beaten severely by staff of a supposedly friendly
club with which the organization had a contract. On March 27, 1998, GALZ was
scheduled to hold a private fundraising party called the "Queen of Clubs" at
Sandro's Nightclub in central Harare. The club's manager had approved and signed
a contract. Tshuma and Juan May Lopes-Pinto, then GALZ's operations manager,
were to come to the club at 6:00 p.m. to begin setting up the venue.

According to GALZ, when Tshuma
arrived at 6:30 to put up temporary decorations for the event, the club's
bouncer, "known as Shumba," began harassing him verbally and tearing the
decorations down. Together with other employees, he "announced that due [to]
the nature of the function, they were not going to allow it to take place and
further continued to make homophobic and offensive remarks. When Mr. Tshuma
disputed such remarks the bouncer at the door without warning began to strike
him continuously."[351]
Tshuma told our researcher,

This big guy, the bouncer, said,
"You gays want to take over this nightclub. I will punish you before the rest
arrive." He beat me and then he pushed me into the street. He shouted, "This
homosexual is going to take over this nightclub and I will not allow it. I
will beat him so he'll tell his friends not to come." Some of the passersby
came over, and when they figured out what was going on, they started backing
him and beating on me too.

Juan came, in his car. He saw
what was happening and so he drove off to find a policeman. The policeman said
he would come but he never did.

Juan came back and got me in the
car. I had been beaten very seriously. We went to Harare Central Police
Station to report it. The sergeant at the enquiries desk took a statement.
And then he said, "What were you doing there?" I told him it was a gay event.

He said, "What did you expect? If
you have a gay event in this city, people will beat you up."

Some of us are well known, and if
we report even something that doesn't have to do with a gay issue, they will
say, "You are gay, this is what happens to you."[352]

Tina Machida tells another
story. "A month ago," she says, "Kelvin, Robert, Fatima, me, and another
friend were all at the Florida nightclub here in Queenside":

A bunch of guys in the corner,
customers, were talking about us. One of them, a guy, came over and said, "You
gays, you all get out of here."

Well, I knew three of those
guys. They had been in my house, at a party I had on the first of July. They
had gatecrashed, they were not invited. They said they came "out of
curiosity." They were asked to leave. But then they waited by the gate for
people to leave, and they beat them up. Two women were beaten pretty badly.
The guys told them, "This gate is the end of the road for you homosexuals. No
one is getting out." One of the women came back in and told us, and one of the
men at the party took everyone home by car.

And at [the] bar, those three guys
were among that group. And they were telling us, "homosexuals out of the
bar." I told Robert and Kelvin and the rest to leave. But I stayed behind. I
refused to leave. I was so angry. They picked up a chair and wanted to beat
me up. The owner sent over his bouncer to tell me to get out. I said, "Come
tell me yourself. Don't send your bouncer with the message."

I took a taxi home-I spent money,
because I knew they would follow me. But next day, one of the hooligans came
over to my house. He said he was sorry. The guys at the bar had asked him to
come over and start a fight. They offered him beers for it. They were hoping
I would hit him, so the fight could begin.[353]

Kelvin adds, "That happens in
clubs all the time, if you visit almost any club-a club that is not
gay-friendly. But you never know whether a club will be gay-friendly. A club
that is one night will not be the next night, because the police or some
hooligans have visited it."[354]

"Wellington Ncube" says, "The
only way to respond to bar attacks is to say 'We are here, stop the violence.'
But for this we need unity among gay people, and this has failed to happen." Tina
Machida points to the way race and xenophobia are deployed to impede gays and
lesbians from standing up:

The trouble is so great. And
they have their image of what you are all set in stone. Once they have you,
they identify you as "Keith's friend"-not gay or lesbian, but "Keith's
friend." And it is all because of that stupid story with the blackmail. They
defamed all of us that way-they think Keith Goddard is the one who teaches
everyone to be gay. And he is now the only white man who comes to the [GALZ]
center.[355]

4. Discrimination and harassment at the workplace

That gays are imagined to have
access to "white" money is a cruel irony. Mass unemployment prevails in the
region; we spoke to many lesbian, gay, bisexual, and transgender people who had
never had salaried jobs. They were supported by their families, or lived by
casual labor or in a barter economy.

While particular inequalities are
difficult to disentangle amid the general fact of poverty, discrimination based
on sexual orientation or gender identity appears to be widespread. Many
lesbian, gay, bisexual, and transgender people we spoke to who had been
employed had been harassed or fired. Effective protection is absent in most
countries; indeed, the climate of homophobia actively encourages dismissals. In
Zambia, Chauta N., who wears clothing identified as feminine, reports,

I've been fired at least three
times. The first was at the Supreme Furniture Shop. Even at the interview
they said, you are too girlish. I was wearing men's clothes then, but I tried
dressing more comfortably after I was hired. They fired me right away.

The second was at the Interconti
[the Intercontinental Hotel]. I was a bellboy and given a week or two to work,
then I was fired.

At another place, when they were
interviewing me, they said, no, you are too womanlike. And then they threw me
out.

I can't keep a job and be me.
But I don't want to keep their money and be someone else. It wouldn't be my
money, would it? It wouldn't be me they were paying.[356]

"Princess Diana," a gay Zambian
man, told us: "At work, people will be talking things about you, it doesn't
mean that you can't do the work, maybe you are the best person to do the work,
but just because they have discovered that you are a gay or a lesbian, and then
they'll say all those things. And in Zambia, the government is not protecting
you." "Princess Diana" has left the country for South Africa.[357]

Paradoxically, Namibia-one of the
countries whose leaders is most vocally homophobic-is the only African country
outside South Africa to offer workplace protections against sexual
orientation-based discrimination. The Labour Act-passed in 1992, early in
Namibia's independent history, and long before the SWAPO government discovered
the political uses of homophobia-includes sexual orientation in a list of
barred grounds for discriminatory labor practices, and allows victims to seek
remedy before a Labour Court. Only one sexual orientation -elated case under
the act is known: this certainly reflects lack of knowledge about its
protections, and fear of employing them, rather than the frequency of
discrimination. Elizabeth Khaxas of Sister Namibia, who worked in a school
before becoming a full-time feminist activist, has written about the difficulty
of turning a little-known legal remedy into effective action in a deeply
hostile society. Her words are relevant to the similar struggle to implement
state promises in South Africa:

How many of us know that [the
law] explicitly protects us from harassment at the work place? And how many of
us are willing to expose ourselves to possible harassment and the ensuing legal
battles over our right to live our lives and loves openly at work? What if the
parents of the school where I am a principal decide tomorrow they don't want a
lesbian on the staff or the school management? Will … I have to take the
parents and the ministry to court to assert my rights under the Labour Act?
Being subjected to this kind of constant fear at the workplace is a form of
discrimination. It prevents me from sharing the most important aspect of my
life with my colleagues at work, consciously hiding issues that heterosexual
people openly assume as part of their lives.[358]

Sarah, a thirty-two-year-old
lesbian, has experienced how remote reality is from the promises of the act.
She worked until 2001 for a NGO that provided services in areas of northern
Namibia.

After the president gave his
speech [in March 2001] calling for us to be arrested and deported, my
supervisor called me and two other women into her office. She asked if we were
lesbians, if we participated in lesbian activities. We lied and said no. She
said, "Lesbians are not allowed to be in Namibia-it's unnatural."

Then I was transferred from a job
at the headquarters in Windhoek to work in the north. When I got there the
staff all knew that I was a lesbian. They would ask me why I dressed the way I
did, why I wouldn't change my lifestyle, and they would tell me that I have to
get married and have children. The staff all lived in the same hostel. There
was a young man on staff who was very rough with his words. He would threaten
to beat me or rape me and he would kick my chair when he walked past where I
was sitting.[359]

But the worst part for Sarah was
not the verbal harassment, the threats of physical violence, or even the
isolation: it was the refusal of her co-workers to ensure her safety.

Everyone knows the [area was]
unsafe. I felt very unsafe. . . . The [people we served] were very homophobic
and the staff had told them about me. Also there were lots of rapes . . . and
the women who worked there were not to go out alone. But I was always sent out
alone. I was very scared. I asked for a transfer and was refused. I asked
for support in my work and was told there was nothing anyone would do and that
I had to take it or leave it. I wrote to the Labour Committee but they never
responded. I quit. It was too unsafe.[360]

In August 2002, flaunting his
disregard for the paper protections of the Labour Act, President Sam Nujoma told
a trade union congress: "I warn you as workers not to allow homosexuality.
Africa will be destroyed."[361]

5.
Discrimination and harassment at the hands of the church

"I always want to tell people,
don't expect sympathy from the church if you are gay," said Carlos Mpofu-who
was dismissed as a Sunday school teacher and expelled from his congregation in
Bulawayo, Zimbabwe, when his sexuality was suspected.[362]

We heard some dissenting voices
in the region. Musonda Chitalu, in Zambia, found the greatest single source of
support for her gender non-conformity-once it was understood as a "medical
condition"-to be her local Assembly of God church. In Botswana, Anglican
Archbishop Walter Makhulu has supported not only human rights in general but
the rights of marginalized minorities in particular.

Some churches have tried to
differentiate between the respective scopes of moral strictures and rights
protections. In April 2001, amid a wave of President Nujoma's homophobic
statements, the Council of Churches in Namibia (CCN) issued a protest conceding
that individual churches condemned homosexuality and that it remained a
"complex issue," but strongly affirming that the Council "rejected any form of
discrimination based on sexual orientation."[363]
Evangelical Lutheran Church leaders in Namibia met later that year with gay and
lesbian activists, in a series of inconclusive discussions. Some ministers
stressed the church's commitment to understanding, others "pushed the agenda of
homosexuality as a sin," according to Elizabeth Khaxas.[364]
Khaxas believes that, while some of Namibia's churches may not support the
state, most will not help or minister to gays and lesbians unless they repent,
and thus they give their tacit support to homophobia.[365]

Many Christian denominations in
Africa have gone out of their way to attack gay and lesbian people in the last
seven years. Chapter II, above, includes examples. The leaders of the
Zimbabwe Council of Churches leapt to support President Mugabe's homophobic
harangues-and closed ranks to shut GALZ out of the World Council of Churches'
international gathering in Harare. Most Christian denominations in Zambia
fulminated vociferously against homosexuality during the 1998 burst of hysteria
after Francis Chisambisha's revelation. And the Anglican bishop of Uganda
wasted no time in congratulating President Yoweri Museveni when he ordered
police to "lock up" lesbians and gays.

The role, and rhetoric, of
churches is particularly important because of their central place in many
African societies. They are not only nodes of solidarity and linchpins of
community. In many areas, they furnish essential services, such as education
and health care, which the state has either abandoned or never made a pretense
of providing. Francis Chisambisha, at the time he came out publicly, was
studying in a college run by the United Church of Zambia. He was forbidden to
take his exams, and forced out.[366]

Many individual congregations
hound and vilify lesbian, gay, bisexual, and transgender members. In Botswana,
Patrick Modisaemang told our researcher that "they will expel you from most
churches if they find you are homosexual. They will think that you are
possessed by demons."[367]
In Namibia, Sarah described her fear of the church.

My parents were very poor. I
grew up with several brothers and played soccer. I was a goalie. I was even
selected to play on the school team. I started dating girls when I was
thirteen. My brothers would say to me, "you are our brother." My father died
and then my mother became very ill. After that the teachers started messing
with me. I failed twelfth grade. There was no one to take care of us. I
began working to support my younger brothers and sisters.

I couldn't go to the church for
support. I can't ever go back to the church. Once you are in the church they
start on you-they humiliate you and exclude you and finally you are driven out
of the church. They tell me that being homosexual is un-African. If it is not
African, where did this thing come from? I am a black African and I will stay
African. Nothing will change that. And besides, where in the Bible is it
written to rape and beat and kill women?[368]

Isaiah, in Namibia, explained
that the church has a significant role because it is in churches that people
are taught that homosexuality is a sin. "However, the same ministers who focus
on homosexuality never talk about how adultery is a sin or how rape is a sin,"
explained Isaiah. "I went to church for love and support. The pastor arranged
a prayer evening and told everyone that I had a demon. They beat me, and threw
me down and totally controlled my body. I never returned."[369]

Many feel churches encourage
families to reject lesbian, gay, bisexual, or transgender children. "My mother
threw me out of our house and said it was because she was a Christian," Buumba
S. in Zambia says. "What kind of Christianity is that?"[370]
And, in Namibia, Isabel found that the church as a conformist community helped
inculcate prejudices in her family and insecurities in her own self.

My mother was a Christian so she
brought us up to be very involved in the church. When I was about twelve I
realized that I like girls. The feeling just got stronger and stronger.
People would say to me, "How come you are alone, you must bring a boyfriend."
I wanted to run away-just to be alone. I had my first experience with a
teacher. It was not a deep thing, but then I got an invitation to her wedding.
I thought, "I am totally on the wrong track." At church they would ask, "When
will you marry?" I realized I had to do the right thing. But I did not want
to go out [from the church].

I finally got married when I was
twenty-one. I have a son and a daughter. But my husband realized I was not
"right." He called me a tomboy. After seven years I got divorced. That's
when my life began. But it was very difficult. My mother and children were
upset. It took a long time to feel at peace. People can look at me and judge
me but I must live the way I am.[371]

"It is dangerous to generalize
about 'the church' in Africa," one cleric rightly reminded us.[372]
In particular, no attempt to account for the conduct of Christian churches can
fail to note the divide between older, established denominations, whose
presence in Africa dates from the colonial era-the Roman Catholic Church, the
Anglican Church, and the Dutch Reformed Church among them-and the welter of
small evangelical denominations which mushroom across the continent. The
divisions are not mapped on strictly class or racial lines; many poorer blacks
continue to attend Roman Catholic services in Zimbabwe, or Lutheran services in
Namibia. However, the appeal of evangelical churches is clearly strongest in
places where poverty and misery are most severe. And a wave of evangelical
enthusiasm seems to be sweeping across southern Africa.

Since the first incursions of
colonialism, Africa has been an assimilative and explosive ground in the
history of world religions. Charismatic religious outbursts have synthesized
indigenous and Christian beliefs, with many becoming or laying the ground for
liberation movements. The evangelical wave now mounting, however, is promoted
by a renewed burst of North American missionary activity. That activity is
concentrated among fundamentalist churches and faith-based NGOs.[373]
Many such groups import a homophobic agenda intact. For instance, Exodus
International-a U.S. NGO which promotes pseudo-medical methods of "treating"
and "curing" homosexuality, all accompanied by Christian conversion-announced
as early as 1996 that its "ministry opportunities" in South Africa had
"sky-rocketed." One of their ministers told an audience of 700 in a Cape Town
auditorium how homosexuality could be "overcome."[374]
By 1999, Exodus reported that it had three offices in South Africa, "with
eleven different support groups," and had undertaken missions to Kenya and
Zimbabwe.[375]
In 1998, at least one newspaper article in Zambia recycled Exodus materials in
promoting a "Christian response" to homosexuality.[376]

Zambia is in fact a center of
Christian evangelical activity, supported by the ruling MMD party and by the
constitution's definition of Zambia as a "Christian nation." Visiting Zambia in
2000, Human Rights Watch and IGLHRC found that one channel of state television
broadcasting had been turned over to evangelical programming, nearly all of it
from the U.S. and Canada. One clergyman in Namibia told us in 1998, "Zambia,
and also Nigeria, now send out waves of their own evangelical missionaries to
countries all over Africa."[377]

The same cleric stated,

These evangelical movements tend
to be attractive. Let me put it this way: the mainline European churches, if I
can call them that, tend to be staid and fixed and quiet. These fundamentalist
churches are not. They speak a language which sounds very much like the
language of African traditionalism, and that contributes to some degree of
popularity. And you could say that they have put other churches somewhat on
the defensive.[378]

Some older denominations have
spoken out in defense of equal treatment for gays and lesbians. However, when
the Council of Churches in Namibia criticized the president's homophobic
rhetoric, Nujoma responded:

The church as far as I am
concerned, is foreign philosophers … the first missionaries in Namibia spied
for the colonisers who followed them. Our constitution recognises freedom of
worship but I don't care about it because it's artificial, it's foreign
philosophers.[379]

Inadvertently Nujoma stressed one
advantage the evangelical churches enjoy: often backed by foreign, fundamentalist
missionary work, which can sometimes rival the resources of the established
churches, the newer sects are nonetheless not burdened by mainstream
denominations' historical association with colonialism.

There are signs that established
denominations may have hardened their positions on homosexuality in response to
the evangelical upsurge. An Anglican clergyman in Botswana-working for, and
wholeheartedly supporting the views of, his liberal archbishop-told us that,
nonetheless, "There is some feeling in the church that we should be doing more
to represent Biblical positions as fully congruent with African understandings
in this debate."[380]

The 1998 meeting of Anglican
primates worldwide, the Lambeth Conference, held in Canterbury, United Kingdom,
was a key moment in this hardening. African bishops spearheaded a conservative
campaign to reverse liberal trends in the Anglican Church internationally. In
particular, they pushed a resolution condemning homosexual practice as
"incompatible with scripture." A proposed passage in the resolution which would
have condemned homophobia as well was altered to read "irrational fear of
homosexuals," which might be taken to mean that the church comprehended some
aversions as reasonable.

The resolution put the church on record
as opposed both to recognizing same-sex unions, and to ordaining those involved
in such unions.[381]
The resolution, along with the role of African prelates in propelling it
forward, was widely publicized in southern Africa. And one Anglican leader told
IGLHRC it was a "setback" for the "atmosphere among churches in general": a
blow to the ability of any church in the region to speak out against officials
who invoked moral judgments to justify restricting rights.[382]

6. Violence and silence in the family

Justin, from Mutare, Zimbabwe,
says that if his family discovered his homosexuality,

My mother would be greatly
offended. In African culture, your mother expects you to get married, expects
you to have a daughter-in-law at home. It would be worse for my mother to know
I will not get married than that I am gay. That is what they expect, what they
have seen from their childhood; it is an unheard-of thing not to marry, and
they will worry what the community will think of it. It is a disgrace to the family.

I could get married, but I would
have problems sexually with women, my wife would suspect and then could find
out about my private life. And why should I lie to someone?[383]

His fears are echoed by many gays
and lesbians. Some people, indeed, isolate themselves from their own families,
out of shame or fear. "Teresa," in Bulawayo, Zimbabwe, says, "I didn't stay
with my mother when she was dying. I didn't want the neighbors to gossip to
her."[384]

Prejudice in the family is not
merely an issue of emotional estrangment. It can lead to brutal violence.
When, in her early twenties, Tina Machida's parents learned she was a lesbian,

They tried to force me to find a
boyfriend but I could not fit in with what they wanted. I was afraid that I
was going to end up in trouble because of my attitude so I used to bring a gay
boy home and tell my parents we were lovers and that we were saving so we could
get married. They believed me and he came to dinner once a week. When they
found out that we were lying, our weekly dinners were banned and he was not
allowed to come back to our house.

My parents decided to look for a
husband on my behalf so they brought several boys home to meet me but I was not
interested so in the end they forced an old man on me. They locked me in a
room and brought him everyday to rape me so I would fall pregnant and be forced
to marry him. They did this to me until I was pregnant after which they told
me I was free to do whatever I wanted but that I must go and stay with this man
or they would throw me out of the house. They did throw me out eventually
thinking that, as I was not employed, I would end up going to this man's
house. Instead, I went to stay with my friends.

I went for an abortion and I was
in the hospital for a month. After that I used to hide whenever I saw my
relatives. I did not contact them for six months. The police were looking for
me so I used to move during the night only. In the end, the police found me
and took me home where I was locked up and beaten until I could not even lift
my arms or get up.

I stayed in that room for months
pretending I was sick so they would not bring the horrible man again but they
did and I fell pregnant again. I ran away and went to stay with my girlfriend.
I did not go for an abortion this time because I was scared it would kill me.
The first time had been really painful. I kept the pregnancy [this time] until
I had a miscarriage at seven months and the baby died.[385]

Parents who detect their
children's difference may force them to undergo traditional "treatments" to
"cure" their behaviors. Buumba S., a lesbian in Zambia, believes that to be a
common practice. "If you are gay, if you don't interact sexually in a normal
way, your parents will think you are interacting with spirits," she told our
researcher.[386]
Peter Joaneti, whose parents moved to Zimbabwe from Zambia when he was ten,
tells one such story.

I never knew much about gayness
when I was a child. In grade six, I picked up that I was completely different
from other guys. In grade seven, I was called a "poofter": and when I asked,
I found out that meant a man who got fucked by another man. The homosexual
issue hadn't become so big in Zimbabwe; later on, words like that began to be
heard more. I began coming to terms with the fact that I was homosexual at
around fifteen.

So then I told my family. I was
fifteen. I said, "I love other men, I think I'm homosexual." I didn't know it
would provoke them. When I was born my mother was expecting a girl, all her
preparations were for a girl, and I was treated like a girl as a baby. So I
didn't think it would be provoking. But my brother said, "You cannot say that
in front of people. I will kill you if you keep on telling people that is what
you are." And my mother said, "You must keep it to yourself."

I was taken to a healer, a sangoma,
in Harare, with my father and his aunties. They told me, "In our culture it
is not acceptable." They thought I was possessed by a demon.

I was seventeen by then. The
healer gave me some muti, a tree herb mixed with water. I was supposed
to bathe in it and drink some every morning. And there were rituals I was
supposed to do with my family. I stopped acting gay for a while, stopped
seeing other men. But it didn't last a year.

My family wanted to drive me out
of the home. But I was already the breadwinner, I was bringing in too much
money. Five years later, they actually drove me away for a week. But the
bringer of money had to come back. They chased me because I was bringing my
boyfriend home and they feared I would provoke my younger brothers to be gay.
Finally, I moved out voluntarily. I feel free.[387]

Many parents "chase their
children out," as Tina Machida says-drive them from their lives altogether.
For children under 18 (as in the case of "Fatima," described earlier), this can
be devastating. In Namibia, The Rainbow Project often tries to help young
people who have been rejected by their families. Says Ian Swartz, "What is
hard are the really young ones who simply can't hide who they are. We had a
fourteen-year-old, Marshall, come to us for help. He's so gay he simply can't
hide it."[388]

Yet for older youths, the loss of
family ties can also expose them to hardship and danger. It can result in the
loss of housing or education: Swartz says, "The safest thing to do is stay in
the closet-even after you've left home and are at university. Just last week I
had two young men seeking help. Two brothers were rejected by their families.
They were students at Polytechnic-but since their families found out they were
gay they were refusing to pay their school fees."

Buumba S. relates that when her
mother accused her of being a lesbian-during the controversy over LEGATRA in
Zambia in 1998-and she answered that she was, "My mother thought it was
outright disobedience, a sin. She said she had standing in the Christian
community and she couldn't endure this. She said, you have to leave home. She
is very much the matriarch of our extended clan, and no one else in the family
would or could take me in or help me." Buumba found work with a Christian
charity supporting street children; by the end of 1998 she ran, and lived in, a
children's shelter built from discarded steel drums in a field on the edge of
Lusaka. "It's a kind of self-imposed exile out there, with the kids," she said,
"just to get out of the whole situation. But I have to be careful. I'm afraid
the shelter would get closed if the government found out a gay person was
working there."[389]

Dominic S., twenty years old when
we interviewed him, was from Bulawayo, Zimbabwe, and living periodically on the
street. His adolescent coming-out led to family violence and the loss of his
legal identity:

My life has changed enormously in
the last five years. Here it is a taboo to be seen as a gay man. Parents will
be expecting a man-child to keep a family, get married, have children. Whether
you are gay or not, at least you should have a family. And if you are a
feminine man, they think even that is beyond you. I knew I was gay at a tender
age-I thought I knew what it was about! But I didn't know what to do about my
homosexuality.

I was always very different. But
I really discovered it when I was fifteen. I went to a boys' school then, and
I saw other boys making love. I didn't talk about it. I had a close friend,
Sylvester, who said, "I've discovered something about you. You are gay, like
me." He was the first person I was open to about my homosexuality.

My family was Catholic and I went
to a very strict Catholic school. I didn't know anything about sex. I had a
very violent father. I was the only child. My mother is now divorced. For
the first few years after the divorce, I stayed with my father and stepmother.

Back at school, I wasn't allowed
to be homosexual, of course. My schoolmates knew about gay people from the
press and the president. They knew about me, they recognized me, and they
would harass me. When I was doing my fifth form I was senior prefect-a sports
person, you know. But suddenly all these merits were taken from me. I was
demoted. The school authorities found out when my schoolmates said, "Dominic
has been seeing Sylvester, he is gay, he is a sissy."

Since it was illegal in Zimbabwe,
school authorities called my mother. I was lucky they called her and not my
father. She denied it to them; and she kept it a secret, she didn't tell my
dad. The school authorities told her I needed psychiatric treatment to change
me. My mother just grew distant. She didn't want to talk with me about it.

She was close to my father's
sister-cousins and they began to sense it. But then my stepmother was
suspicious also, because my schoolmates told their families, and their families
talked. And so my stepmother began opening my mail. She opened one of my
letters from Sylvester, and discovered I was gay.

My stepmother told my father. He
disowned me, and threw me out of the house. It was 1998, I was eighteen; I
knew I didn't have a dad anymore and it was very painful for me. I tried to
talk to him. He said, "I am not going to have a child who is going to be a
sodomist." My stepmother encouraged him. She used to give me a very hard
time. She had two big boys of her own, and she thought I was going to sodomize
them.

My mother was married to another
man. I couldn't stay with my father any longer; but my mother's new husband
had figured out I was gay, and he couldn't stand me either. …

I was still in Catholic school in
Bulawayo. My progress was affected-I failed my A-level exams. My father was
paying my school fees. But then he stopped. And he also took all my papers-the
ones I had at home, and he even took the ones I had left at school. He took my
A-level certificates, my fourth form certificates, my I.D., even my birth
certificate. So for him I was not a person, and he tried to ensure that for
everybody else I would not be a person either. He tried to erase my
existence. I couldn't get a job, couldn't go to any institute: they needed my
certificates.

I'm still in this situation. I
can't confront my father: I don't have the strength. He is a very violent
person. If he still has them-he may have burned them-he will never surrender
them to me. I don't exist for him. And he has told all his relations to write
me off.

I stay away from home. I feel I
can only disappoint my mother and my grandma.

But I have come out. I have met
other gay friends, who taught me ways I can behave in public as a gay person.
I want to do counselling with GLOM, to help educate people about their gayness,
sexual orientation, and sex. I want to be active in the community so that we
see a gay consciousness arise in the town: so people know about it and learn to
accept it, and themselves. Gay people can do more than sex. They can be active
people in the community.[390]

The misery of rejection by one's
family is compounded by the lack of either legal recognition or social respect
for gay and lesbian people's own relationships. No state in the region fully
acknowledges those relationships before the law. In the face of homophobia and
silence, lesbian, gay, bisexual, or transgender people face
sometimes-insurmountable difficulties in forming families of their own; a
relationship of care, once founded, may be reviled by others or disregarded by
authorities.

The irrationality, and the pain,
this produces was brought home for many in Zimbabwe after the suicide, in
October 1999, of Siphanilizwe Nyathi in Harare. "Phangi," as he was known to
his friends, was a respected member of GALZ and a counsellor and father figure
to many younger gay men. In an angry public statement, Keith Goddard said,

What we can say is that, along
with all other lesbians and gays in this country, Phangi was forced to endure
the numerous stresses and strains brought on by homophobia.

Society shuns us and equates us
with gangsters and perverts and our relationships are criminalised.

We get no rest from persecutors
and we see no chances for alleviation or escape, or any possibility of
momentary respite or peace.

Phangi was one of our finest and
most highly trained counsellors and provided a strong shoulder for those coping
with the pressures and problems that accompany being gay or lesbian in
Zimbabwe. Those he helped are now bereft and struggling to derive some small
meaning from this ghastly tragedy.[391]

Nyathi's partner of eight years,
Herbert Mondhlani, was shunned by Nyathi's family, who shut him out of burial
and inheritance arrangements and expressly barred him from attending the
funeral. However, a delegation of Nyathi's friends from GALZ attempted to
attend and videotape the funeral for him. Nyathi's family had security guards
drive them away. The state-sponsored Sunday News in Bulawayo, reporting
on the event, quoted an indignant "source" present at the funeral as saying,

It is purely unAfrican. I have
never heard of such a thing since I was born. How could a man ask to pay his
respect to a deceased young man on the basis of a same sex relationship?[392]

Mondhlani himself placed memorial
messages in several newspapers-itself an extraordinary act, as these memorials
are usually reserved for the mourning of heterosexual spouses or blood kin.
One read:

One month in God's eternal
peace. I ask myself why Phangi? For eight years together we fought against
bigotry, prejudice, ignorance, rejection and phariseeism.

Together we triumphed, won
friends and made no enemies.

Why did you leave me to fight the
last mile alone?

Herbert Mondhlani

Herbert Mondhlani died in 2000.

7. Suicide: "The closet is a dark room"

"I've thought about suicide,"
Dominic S. says. Indications are that the rate of suicide or attempted suicide
among young gays and lesbians¾facing
the prospect or the reality of both family rejection and rejection by society¾is high. Phangi Nyathi was the eleventh
member of GALZ (out of less than a hundred active members) to attempt or commit
suicide in 1999 alone.[393]

Justin, from Mutare, Zimbabwe,
says, "I feel very lonely, depressed, and at times distressed. I have these
feelings of suicide, of wanting to try it, of not wanting to live this way
anymore. Of twenty or more gays in Mutare, I know maybe half of those people
who have tried to kill themselves."[394]

Simba Zwangobani in Zimbabwe
remembers:

One time I really broke down. It
was a four-day holiday, I was living at GALZ … I tried to commit suicide. One
of the office staff found me. I said, I will never do that again. But again
another time I tried it. I've tried suicide three times in all.

I've heard before that most
people look at me and say, he's so happy-I'm not happy most of the time. But I
have a strong character.[395]

Dumisani Dube also tells of "another bad incident" in his
own life:

In my last relationship, we had a
very big problem. My partner's brother discovered we were gay. He told the
family, who got down on my partner and insisted we break up.

I was so depressed. On December
31, 1999, I tried to commit suicide. I took sleeping pills. They took me to
Parirenyatwa Hospital and I was saved. But it's hard to help having those
feelings, when you see how the world around you looks on you.[396]

In Windhoek, Namibia, Simone, a young lesbian, says,

I was unhappy as a child. I knew
I was different. I told my mother during an argument when I was sixteen. She
told my father and they sent me to a psychiatrist. He told me that my problem
was that I didn't accept who I was. That God intended for me to like men. I
tried to pretend. It was like flying around with no airport to land at. I
tried to kill myself. I cut myself-I wanted to make people understand the
pain. I just wanted to be what I wanted to be.

My father and I fight. My little
brother throws the Bible at me and tells me it's a sin. It can be very lonely.
I kept all my feeling inside, all bottled up until the pain just took over. I
didn't care. I thought, "I hate myself, I hate the loneliness, I hate the
pain. I hate my life." So I tried to kill myself again. I still don't feel
safe. Why don't they just leave us alone? We don't rape or beat or steal but
still they call us criminals.[397]

Derrick,
a youth activist with The Rainbow Project (TRP) in Namibia, tells how suicide
has affected his life.

This year, a friend of mine
committed suicide. He was having this argument with his mom-actually, he was
one of my ex-lovers. He was having this argument with his mother and it was
about something and his mother suddenly came up with the gay issues. "Yeah,
you are going out with males-why don't you get yourself a girlfriend?" It
started so small, from what I hear, and it got to be very nasty. And-he took
tablets. He told his mom, "Mom, you already know that I am gay and I thought
you already made peace with it, so why are you involving this issue in here?
Then I really think I have to make an end to this life." And the mom thought
he was just making a joke and said, "I really don't care if you kill
yourself."

So he
went to his room and took some high-blood pressure tablets, I don't know how
much he took. Around 12:00 that evening he started vomiting, choking and the
person working late nights rushed with him to the hospital, but it was too late.
The doctor said it was too late, there was nothing they could do for him.

And two
of my friends also tried to commit suicide. The Rainbow Project had a
storytelling [event] and I did write something about how we should get the
youth to stop trying to commit suicide, although I didn't know the answer. It
was two pages. And, when I saw these people who had tried to commit suicide
there, I did not have the guts to read it there, I didn't know if they would
feel offended because they are my friends. So I just went on stage and read a
poem only. But today I feel like I should have just read it, even if it
offended them, I should have just done it.… It was just telling the youth, it's
not okay to commit suicide, if you have got such a big problem, come and talk
to the people, talk to the counsellors, talk to your pastor, your lawyer,
someone you trust, your teacher….

And I
also wanted to talk about my ex-boyfriend. Most of the youth at TRP knew him
and how he committed suicide. And I wanted to tell them more about him, about
how he was such a nice person. But in my mind I think he did a very wrong
thing. I think he should have at least talked to me-but he was five hundred kilometers away. But still today I
feel he should have said something, to me especially, He knew very well that
he could count on me. I am very mad at him. I didn't even want to cry at his
funeral, but the tears just came running down.[398]

Leila, a Namibian lesbian, also
tried to commit suicide; the end of a secretive, five-year relationship left
her devastated, friendless, and alone. She survived the attempt, and is
struggling to build a different life. Not long before we spoke to her, she had
told her mother she is a lesbian. Her mother was very upset; Leila made her
promise not to tell her sisters: "I want to tell them on my own time."

She is volunteering with both
Sister Namibia and The Rainbow Project, and both have given her much strength.
She says: "The closet is a very dark room."[399]

8. "The pressure is mostly on women"

For lesbians and bisexual women,
economic needs are added to social and cultural preconceptions to create a
burden of demands which many find all but unendurable. Families see an
unmarried daughter as a debit in the balance sheet, the loss of lobola or
bridewealth. Many activists interviewed for this report cited entrenched
societal attitudes mandating that women be submissive, as well as attitudes
toward sexuality which stress men's entitlement to sex and require women to
satisfy men's sexual needs. In Namibia, TRP's Ian Swartz put it succinctly:
"Women are men's property. They must do all the work and women are not allowed
to say 'no.'"[400]

In Zimbabwe, Tina Machida says,

The pressure in public is
stronger on men, still. The pressure now in families, really, is mostly on
women. Because with the men there is a certain attitude of "do your own
thing." There is no respect for sons who go their own way, and families won't
rally around them. But there is a sort of resignation to what is happening in
their son's life.

But with women-even if the
families say they accept their daughters are different, they don't: they still
keep pushing for marriage and lobola.Some daughters give in and
do what their parents want. Some daughters go away for good.[401]

In Namibia, Ian Swartz sees the
pressure on women as coming both from community violence and family repression:
but the two often work in tandem. Swartz confirmed that (as in Machida's own
case) when families suspect that their daughter is a lesbian, they often arrange
for a man to rape her. Swartz explained, "Women who are lesbians or
heterosexual but not available to men will be dealt with. They face physical
violence and the constant threat of sexual violence. About 25 percent of the
women who call the TRP hotline are calling to report a rape. They usually
don't tell us at first, but in a later conversation they will disclose being
raped. They virtually never will tell us their names or where they live.
What's worse is that some of their families honestly believe forcing their
daughter to have sex will 'fix' them."[402]

Even those daughters who are able
to "go away for good" may not find freedom in doing so. The difficulties for
women in living an independent life are profound. Irma, a young Namibian
lesbian with an extremely "masculine" appearance, describes some:

I have always been different and
everyone could tell. I remember when I was eleven thinking, "I am not
normal." The teachers didn't like me and they would harass me. No one would
stand up for me. I don't know who my father is and my mother is dead. Lots of
times the teachers would not let me attend class. I dropped out. I don't have
an identity. I need a birth certificate but I don't have one. It makes me
worried about being deported.

I want to get a job. But I am
afraid they will force me to be a woman. I live with an older woman. She is
not a relative but she gives me a place to live. The men in the neighborhood
tell me they will rape me. I try to avoid them, but it is hard. I can't go to
the police, they will ask me if I am a man.[403]

Poliyana Mangwiro, herself from
rural Zimbabwe, spoke about the problems women like her face:

Most black women, particularly in
the rural areas, didn't even go to school. Those women will not even recognize
the name lesbian: they will just say, "I have a feeling toward women." They
can't imagine a whole lot of women without husbands-what a thing! And they
have no skills that will help them live on their own.

Lesbians desperately need to know
how to do something that will bring them income. Many lesbians are divorced.
And if you divorce, you will have no job, no support, no education, and
children to care for. Except that if they call you a lesbian, your husband
will get custody of the kids, and you will lose them.

Some of these women are looking
after three or four children. The society will not give them jobs, and they
are forced to turn back to their parents.

We desperately need a project
that will develop skills like handicrafts, design, cooking, things that women
can do to help them get jobs and work.[404]

We spoke to Gloria, a
twenty-three-year-old woman from the rural community of Masvingo, three hundred
kilometers from Harare. Shy and reticent, she too did not use the term
"lesbian," but said that she had noticed "these feelings" in herself at the age
of seventeen. "Because of not knowing where to go," she said, "I kept it
secret." At that time, she discovered an advertisement for GALZ in the
newspaper, wrote a letter, and received an answer. Not until two years later,
in July 2000, did she come to Harare and visit the GALZ Center.

Although she said her visit to
GALZ "made me feel better," Gloria had never had a relationship with another
woman, and she had never spoken to other women in Masvingo about her feelings.
She believed there might be two or three other women in Masvingo who had
similar feelings, but she would not raise the issue with them.

She is one of a family of several
daughters; her father died in 1999. "They want me to get married now, my
family, she says: "It is very late. They are expecting me to have a husband,
and they have one picked out for me." The extended family ask her mother why
Gloria is not married, and say: "We want lobola."

Gloria was unsure how she would
respond. She feared how her family might react to her feelings: "Maybe they
would chase me out. I don't know what they think." But she was also afraid to
move to Harare, where "I don't know what I would do."[405]

Mangwiro's lesbian support
group-or support group for women with feelings toward women-within GALZ had
about twenty members at the time. Many, like Gloria, were from rural areas and
only able to attend intermittently. Mangwiro herself had realized she had
desires toward women fifteen years earlier. Her father had forced her into a
polygamous marriage as a child. "I was a second wife when I was fifteen, and I
ran away when I was seventeen. I didn't know I was a 'lesbian.' But I was
going out with my husband's first wife. We were close to each other. It was
not a sexual relationship, but we held each other very tight."

After running away, "I came to
Harare. I worked here for many years." A foreign friend introduced Mangwiro to
GALZ.

In the 1990s, Poliyana married a
second time: "Because," she said, "I did not want my father to kill himself."
Her second husband was a GALZ member, gay himself and supportive of Poliyana's
relationship with her lesbian partner.

"It helps me, in ways, to be
married," she told us. "It is easier for a woman to have a husband to point
to. But it makes me feel like I'm still in the closet. Everyone knows I am a
lesbian. But I feel I have made a compromise. It's our compromises, though,
that keep us alive."[406]

V. Realizing Rights: The Challenge of South Africa

No one can write about the
countries of the region without recognizing South Africa's influence, and
difference. Both stem from the same sources: its comparative wealth, the
length and example of its struggle against white rule, its diversity, its
size. We treat the South African experience in a discrete chapter here to
acknowledge its uniqueness, but also to stress how important its model is for
the rest of the region. The model is not exclusively positive. States can
learn not only from South Africa's successes, but from its challenges and
failures in implementing a sweeping commitment to remedy abuses and achieve
change.

South Africa has one of the most progressive and inclusive constitutions in
the world. It has extended human rights protections across the board, acknowledging
the respect due to diversity in a way that the ideologies, prevalent in many
countries, of "national unity" or "cultural authenticity" still prevent. In
particular, the South Africa government has shown, in the word of law, an
unprecedented African commitment to acknowledging and upholding the human
rights of lesbian, gay, bisexual, and transgender residents and citizens.

The
word of leaders has not always matched the word of law. Activists complain
that the South African government has not made public, unequivocal statements
against the discrimination lesbian, gay, bisexual, and transgender people still
face. Nevertheless, the manipulation of homophobia common elsewhere in
southern Africa, while still practiced occasionally in the country, has not
become a common feature of political life. South Africa is the only country on
the continent to have openly gay and lesbian bars, newspapers and magazines,
NGOs and community centers. It even has, in Cape Town, a tourist industry
catering to gay visitors. Many gay and lesbian people from surrounding
countries told us they hoped, someday, to emigrate to South Africa.

Yet
these benefits are only enjoyed in practice by a relatively affluent few.
South Africa's promises of equality rose against a background and history of
radical inequality. Poverty as grim as the worst shantytowns in Lusaka can be
found a few miles, or blocks, from shops and offices as posh as anything in
London. That gross disparity cuts across lesbian, gay, bisexual, and transgender
lives. The institutions tourists see still cater to a small minority within
South Africa. Most of the population is still shut off from accessing them-or
from experiencing the freedoms described on paper¾by deep economic
inequity, social isolation, and cultural exclusion.

Mike
Waters, from the opposition Democratic Alliance, a white man and the only
openly gay member of Parliament, told our researcher, "There is a vacuum
between what the constitution says and what is happening on the ground."[407] From a very different vantage,
Joyce, an African, HIV-positive lesbian living in Soweto, and a survivor of
multiple rapes and acts of violence, said, "I think our constitution is there-but it's something that's written but is not being
practiced."[408]

A. Equality and the Law

To the
extent that a more liberal atmosphere for gay and lesbian people has arisen in
South Africa, most would attribute it to the constitution's Equality Clause.
Derek, a gay man in Cape Town, told us, "Things have gotten easier since the constitution
passed. Everyone knows about their rights-not necessarily knowing what they
are, but they know they have rights."[409]
Activists fought long and hard to secure a constitution containing protections
against discrimination based on sexual orientation. Its final passage in 1996
was greeted by celebrations in gay and lesbian organizations and communities.

Writing
in 1993, Edwin Cameron, an openly gay South African jurist and now a judge on
the Supreme Court of Appeal, had listed the potential consequences for lesbian
and gay people of obtaining protection in the final constitution:

·The decriminalization of gay sex acts,
by abolishing the common law crimes of sodomy and "unnatural sexual offences,"
as well as provisions of the Sexual Offences Act which also criminalized such
acts;[410]

·A uniform age of consent for homosexual
and heterosexual sex;

·Guarantees of free speech and
association;

·Laws against discrimination based on
sexual orientation, including [in] such areas as employment, tenancies,
provision of public resources and services, and insurance;

·Formal recognition of permanent
domestic partnerships, including partner benefits in pensions, medical aid,
immigration and insurance; rights of intestate inheritance; fair and
non-discriminatory assessment of abilities in relation to adoption and child
care; and legal standing to act on behalf of a partner who has lost the ability
to make conscious choices.[411]

Almost
a decade later, what has actually been won?

In the courts, a great deal. The
new South Africa has a powerful court system, in which the Constitutional Court
(and, to some extent, the High Court) can strike down unconstitutional
provisions and practices, and even rewrite, or "read" new language into,
existing legislation. Years of constitutional litigation have turned some of
Cameron's hopes into law. The Gay and Lesbian Equality Project, an advocacy
and legal service NGO and the successor organization to the National Coalition
for Gay and Lesbian Equality (NCGLE), proudly lists cases-many of which it
filed or participated in-which have brought forward the judicial understanding
of sexual orientation and the law.

Most
importantly, the first of Cameron's expectations has been fulfilled:

1998: National
Coalition for Gay and Lesbian Equality et. al. v Minister of Justice et. al.The Constitutional Court of South Africa overturned the common-law offence
of sodomy; section 20A of the Sexual Offences Act; the listing of sodomy as an
item in schedule 1 of the Criminal Procedure Act; and other mentions of sodomy
in law.[412]
The court found that they violated constitutional protections for equality,
privacy, and dignity. The criminalization of consensual homosexual conduct
disappeared from South Africa.

Other cases have formalized
recognition for lesbian and gay partnership rights:

1998: Langemaat
v Minister of Safety and Security.The High Court ordered that a
state medical scheme recognize the same-sex relationship of an enrolled member
and extend spousal benefits to the partner.[413]

1999: National
Coalition for Gay and Lesbian Equality et. al. v Minister of Home Affairs et.
al. The High Court and, on appeal, the Constitutional Court ordered that
same-sex partnerships be recognized for the purpose of granting residence
permits to the foreign partners of South African citizens and permanent
residents. The decision overturned section 25(c) of the Aliens Control Act,
which restricted those immigration benefits to married couples alone. The
Constitutional Court thus recognized "permanent same-sex life partnerships,"
saying that in immigration, at least, they deserved the same benefits as
married people.[414]

1999: Martin
v Beka Provident Fund. The Pension Funds Adjudicator-a special division of
the High Court of South Africa-ordered that same-sex partnerships be recognized
for the purpose of receiving survivors' benefits from pension funds.
Importantly, the decision held this right does not depend on an explicit
direction from the deceased partner in a will.[415]

2002: Satchwell
v The President of South Africa and the Minister of Justice. The High
Court and, on review, the Constitutional Court found that same-sex partners
must be included in benefits given to the spouses of judges under the Judges
Remuneration Act. The Constitutional Court ordered the act changed to include,
after "spouse" in the delineation of benefits, the additional words "or
partner, in a permanent same-sex life partnership in which the partners have
undertaken reciprocal duties of support."[416]

A
series of decisions in the 1990s gave a gay or lesbian parent equal rights in
custody decisions about children after a divorce.

1993: Van
Rooyen v Van Rooyen.Even before the Equality Clause in the new
Constitution entered into force, a court ruled that a divorced mother could not
be denied access to minor children because she was participating in a lesbian
relationship.[417]

1998: Greyling
v Minister of Welfare. The High Court overturned a magistrate's decision
removing a child from a lesbian mother and giving her to her grandparents
solely because of fear that the child would suffer psychological damage because
of the lesbian relationship.

1998: Mohapi
v Mohapi.The High Court awarded full custody of a child after a
divorce to the mother, now involved in a stable lesbian relationship.

A
recent decision says that gay and lesbian people can care for children not just
as individuals-but recognizes adoption rights for same-sex partners:

2001: Du Toit and De Vos v
Minister of Social Welfare. A High Court judge ordered "read into" the
Child Care Act and the Guardianship Act new language which allows lesbian and
gay couples to be joint, legal parents of a minor adopted child.
Specifically, he ordered (similarly to Satchwell) that "spouse" in the
acts be complemented with the words "or the two members of a permanent same-sex
life relationship." At the time of writing,
the case is now awaiting review by the Constitutional Court (see also below).[418]

Evert Knoesen, coordinator of the
Equal Rights Project at the Equality Project, describes what has been the NGO's
long-term litigation strategy:

First it was essential to get
sodomy laws repealed. They were a basis, clearly, for relegating lesbians and
gays to a second-class status in the law. After that, we would move on to
partnership recognition. To approach this through immigration benefits as a
beginning meant getting them recognized in the realm where there would be the
least financial implications, and the state would be least threatened. From
there, we would move into areas where we would leverage recognition of real,
economic benefits for gay and lesbian people, and couples.[419]

So far, the strategy has been a
success. Yet questions arise. Despite the governing African National Congress
(ANC) party's formal commitment to gay and lesbian rights, the state has
contested in court almost every single precedent-setting case meant to define
those rights under the Equality Clause-including defending the
constitutionality of sodomy laws themselves. When the High Court has found
against the government, it has regularly appealed. "They fight everything they
can and some things they can't," says Evert Knoesen.[420]
Although the government's determination to appeal decisions to the
Constitutional Court arguably assists in arriving at a single ruling binding on
all other courts within the judicial system, such an insistent state
combativeness can also undermine a culture of rights.

Moreover,
the litigatory approach to change is slow, halting, and subject to sudden
derailments. Knoesen says, "We live in fear of rogue lawsuits that might
challenge courts in ways they, or we, aren't ready for." The fear reflects the
piecemeal manner of pursuing protections through the courts. Judges rewrite
the language of laws bit by bit, decision by decision, assembling a patchwork of
uneven progress; but legislation attuned to the spirit of the Equality Clause
could achieve quicker, more comprehensive change.

Nevertheless,
a range of positive protections have indeed been written into legislation:

The Employment Equity Act (1998) bars
unfair discrimination "in any employment policy or practice," which would
include benefits such as pensions and insurance, on all the grounds listed
in the Equality Clause, as well as "family responsibility" and "HIV
status."

The Medical Schemes Act (1998) defines
a "dependant" so as to include same-sex partners, as well as unmarried
heterosexual partners.

The Rental Housing Act (1999) bars discrimination
in rental housing on all the grounds prohibited in the Equality Clause,
including sexual orientation.

The Domestic Violence Act (1999),
allows any person in a "domestic relationship"-effectively meaning any
cohabitation between people who are not close blood kin but living in the
"same residence"-to get a protection order against abuse. It replaced an
older Family Violence Act which had stipulated that protection orders were
only available to married people.

Most
sweepingly, the Promotion of Equality and Prevention of Unfair Discrimination
Act (2000), or "Equality Act," commits the government to "promote equality" on
all the grounds in the constitution's Equality Clause. Barring discrimination
in all spheres of state activity, it also implements the constitutional ban on
discrimination by private actors. However, the specific mechanisms for redress
created by the act focus on gender-, race-, and disability-based
discrimination.[421]

Yet
serious legal disparities remain.

Homosexual
sex was legalized by the Constitutional Court's decision; but the age of
consent remains unequal-sixteen for heterosexuals, nineteen for men having sex
with men.[422]

Moreover,
South African law on rape is confused and discriminatory. Rape is defined as
non-consensual penetration of a vagina by a penis. Other forms of rape-including the rape of men by men, or women by women-would be charged only as "indecent assault," which carries
a lower penalty.

Finally,
the courts' recognitions of gay and lesbian partnerships in specific situations
are still far from leading to a comprehensive rewriting of laws on marriage-or
a clear understanding of what legal status same-sex partnerships actually can
enjoy.

Encouragingly,
the South African Law Commission has, at the government's request, undertaken a
major review of the law on sexual offenses, engaging in wide consultation on a
new Sexual Offences Act.[423]
Draft proposals included the redefinition of rape in gender-neutral terms,
including criminalization of homosexual rape. While the process has been
subject to long delays, a final report on the commission's recommendations was
due to be published in time to enable the Department of Justice and
Constitutional Development to introduce a bill before Parliament in 2003.[424]

Yet
parliamentarian Mike Waters still points to "insufficient alignment" between
the constitution and the laws. "And beyond law," he asks, "what happens on the
level of policy? Do they actually look at policies and run them all through the
filter of every status in the clause to see who might be directly or indirectly
discriminated against? Or do they quietly leave some of them, like sexual
orientation, out?" Waters has asked a formal question in Parliament of every
minister, demanding whether their department retained regulations
discriminating against gays, women, or the disabled. "If I were the
president," he says, "I would ask every minister to go through all regulations
and see where they contradict the constitution. There should be a delegated
researcher in every department to evaluate policy in constitutional terms."[425]

Parliament's
docket is admittedly overcrowded¾and despite that, legislative
progress has been made. Yet the issues go beyond the letter of the law. They
cut to the core of how the government reaches out to, and defends, the people
it claims to represent. Many people interviewed voiced skepticism about the
government's commitment to the rights of gay and lesbian people, given the
relative silence of officials on those issues-including
national, provincial, and city representatives; and the lack of resources
steered toward safeguarding those rights.

B. Persisting Prejudice, Ongoing Abuse

1. Violence and discrimination in the community

Law and
litigation have not filtered down to the level of everyday life. The fact of
prejudice against lesbian, gay, bisexual, and transgender people persists, and
the state has done little to counteract it.

In
communities across South Africa, people reported to us that a concept of
homosexual conduct as "un-African" remains powerful, and repressive.[426] Many of our interviewees, straight
and gay, called it the single most common condemnation they hear.

Nonceba,
a heterosexual African woman from Eastern Cape, told us that "Folks say
homosexuality was brought in by whites to spoil our culture. It is evil to
mention it at all."[427]
Diwysa, a heterosexual African woman from the same province, described how
homosexuality is seen within her rural community: "People say it is a demon.
We don't talk about sex to begin with in black culture, and our elders do not
mention homosexuality at all…. People use culture as an excuse not to
understand."[428]
Tsembani, an African gay man who is the coordinator of the HIV/AIDS Program at
the Durban Gay and Lesbian Community Health Centre, says, "When I do my
trainings [for healthcare providers, on gay and lesbian rights] people always
say to me 'homosexuality does not exist within the black culture,' that it
'came with white culture.' … They try to put the culture up as a shield.'"[429]

Thulani
Mhlongo, a gay man from Soweto who leads the Township AIDS Project and SOHACA
(Soweto HIV/AIDS Counselors Association) and is a longtime activist for gay and
lesbian rights in South Africa, encounters such attitudes often. He says, "The
oldest argument against homosexuality is that it is not a part of traditional
African culture, especially in rural areas. But I work with traditional
healers who acknowledge that it has always existed."[430]

Charmaine,
a member of an African lesbian support group organized in Gugulethu by the
Triangle Project (a Western Cape lesbian, gay, bisexual, and transgender
advocacy and service organization), told us: "In the black community it says
that there is no such thing as gay and lesbian. In white and coloured
communities, there is no culture and so they learned about things in school.
Black communities didn't have the same kind of education and so we didn't have
the opportunity to learn about these things in school." Another member of the
support group said, "For example I was told in school that bisexual meant
someone with two sex organs. It wasn't until I got to the Triangle Project
that I understood."[431]

Yet the
power of "tradition" is not unique to African life in South Africa. The
comment that there is "no culture" in coloured communities may imply that there
is no codified body of customary law there; it also may be a way of saying,
disparagingly, that mixed-race people lack cohesive traditions of their own.
Some coloured people endorse comparable ideas as well. Vainola Makan, a
coloured lesbian who works with Khib Women's Center-an African women's organization dedicated to the
empowerment and emancipation of women-stressed
that coloured communities do not focus on custom or tradition as sources of
value. "If you are part of a Zulu or Xhosa or Venda commmunity it will be more
difficult for you." On the other hand, another feminist activist, Bernedette
Muthien, vigorously disagreed:

If
coloured communities are not hierarchical and patriarchal then I don't know
what is. Within that, they rigidly police and socialize you, so much so that
you are struggling around your sexuality and cannot be open and fluid and deal
with a larger sexuality…. Coloured communities are governed by a Christianity
that is just as patriarchal as customary law.[432]

Meanwhile,
Vasu Reddy, of the Durban Gay and Lesbian Community Health Centre, spoke to
Human Rights Watch of the role of the traditional in Indian life in South
Africa: "The challenge from within Indian communities is a debate that
homosexuality is generally unnatural, deviant, not normal…. There is a tightly
knit family structure, a very patriarchal structure, and homosexuality
challenges that. Only in the last ten years has there been a kind of visible
Indian lesbian and gay subculture in South Africa."[433]

Whites
in South Africa also have a "culture," or several cultures; some can be as
rigidly repressive as the African customary systems whites describe and, when
convenient, decry. Mazibuko Jara, formerly an activist with the National Coalition
for Gay and Lesbian Equality, told us,

Do you
think if you go to Northern Province or Pietermaritzburg and talk to some
little group of Afrikaner farmers you'll find they are so loving and accepting
of their gay sons, where in the townships they are not? Don't be ridiculous.
It's a racist notion. Homophobia doesn't come from one culture as opposed to
another. It comes from isolation and traditionalism. . . . Apartheid brought
homophobia in because they felt threatened and they wanted to circle the
wagons, hang on to the Afrikaner's traditional family with a servant wife
bearing sixteen sons to the farmer…. And then homophobia came to the townships
because apartheid cut them off from communication and change, and put them on
the defensive where the family was all people had to hang on to. It is more
violent [for LGBT people] in the townships because there is more violence
generally in the townships. But there is not more hatred there.[434]

Our own interviews suggested that
a homophobia phrased in "cultural" terms may also reflect personal and even
professional feelings of powerlessness. As a way of sounding out some deep-set
ideas about sexuality and culture, Human Rights Watch researchers conducted
interviews with more than a dozen heterosexual women in two groups from the
Eastern Cape regarding their feelings towards lesbians and gay men. The
interviews were conducted on the condition of anonymity and with the assistance
of an NGO. Most of the women interviewed worked as organizers and peer educators
addressing violence against women in their cities and towns throughout the
Eastern Cape.[435]

The women were almost uniform in
their discomfort with lesbianism and homosexuality. One woman described
homosexuals as loud, alcoholic, and untrustworthy.[436]
Another said, "They are possessed by the devil, they have forked tongues. If
we find them, we beat it [the devil] out of them. If we can't, we drive them
out of our village."[437]

The more the women talked about
their feelings about homosexuality, however, the more evident their frustration
became over taboos on discussing sexuality that hampered their work on violence
against women. The enforced silence contributed to women's general lack of
control over their sexuality¾and
lesbians seemed to some speakers, on further discussion, to be victims of that
silence as well. "People are very quiet," one woman said. They don't want to
talk about sexuality. They don't want to talk about being raped."[438]
Another woman from a rural community added, "But there are lesbians, they hide
because they fear the repercussions. They would be ostracized. Besides we
can't talk about it because women take whatever men say. Women don't have a
voice even if they have an idea."[439]

Silence
translates into isolation and abuse. The situations some young gays and
lesbians face at home or in school are similar to those their counterparts
confront in Zimbabwe or Namibia. Some people are bullied or commanded to
change appearance or behavior. Lamour, a young lesbian in Durban, told us:
"There was a lesbian at school who wanted to wear pants, not skirts. The rules
said pants were not for girls. The teacher didn't let her write her exams
unless she wore a skirt."[440]

Lebo,
in Durban, told Human Rights Watch that "there's prejudice at my home. My gay
friends can't visit, my father chases them away. My mother would be willing to
accept me, but my father changes her response. I enjoy the gay life but it's
hard to have only this life. I'm afraid the gay life will drive me out of my
home." His parents had heard that he was gay from gossiping neighbors, and
confronted him. "They said, 'Choose your family or this lifestyle.'"[441]

"Maria,"
a twenty-three-year-old lesbian in Mamelodi, was driven out of her home in 1996
by her mother when she came out. She reports that later, in school, "Once the
kids said to me I was a lesbian because I had a vagina that didn't close. It
was overheard by a teacher, who called me to the office and asked point blank
if I was a lesbian. I said yes. I was suspended from school about a week
later when another girl and I were accused of sleeping together. The other
girl was suspended also. But I was strong enough to go to school in that
environment. No one will chase me away."[442]

Pubs
and gathering places are often dangerous. Simon, a gay man in Mamelodi, says,
"I get harassed in pubs now by straight men-they will come on to me and then if
I don't accept the flirtation, they might hit or slap me. I often fight with
boys after clubbing; straight men hang outside or inside the clubs. I think the
police equate rape and gay sex. If you go to them and say you were raped, they
will say you wanted to have sex, that you went wherever you were just to have
sex."[443]

Beverly
Ditsie, who lives in Soweto and is a long-time lesbian leader in Gauteng and
nationally, says that lesbians "take a risk going to the shebeen. They can
stand seeing an effeminate gay boy come in-they'll say, oh, he's a moffie. But
when the lesbians come in, they start the harassment. The men keep coming on
to them, saying 'Well, what are you?' Lesbians can say, 'We are like them, the
gay boys,' and the straight men still come on to them."[444]

Tutuzeni,
a lesbian in Gugulethu, told us, "The men don't want the butch lesbians to
enter their environment. They fight always with butch lesbians because they
think the lesbians want to be men and they are trying to protect their
territory."[445]

Harassment
and violence on the streets is a steady theme of people's stories. Palesa,
twenty-five years old, says,

I have
found it to be more unsafe being a lesbian in public, out with a girlfriend,
than when by myself. Sometimes when I am walking in town, I have to make sure
we don't kiss or hold hands because of what people will say. I feel like I
have to protect her and make sure she gets home safe… I don't usually walk with
straight friends, but with my lesbian friends because we are used to the
harassment. But if I walk with straight people they don't know what to do.
With my lesbian friends we sometimes swear back, but that's not my style. I
don't like unnecessary fights. And men threaten and actually rape them because
they are lesbians.

I go to
town with other lesbians to feel safe. To their homes[,] ... or I will just
stay at home. I don't go to clubs really. I would love to, but I don't think
they are safe…. I don't feel safe being out at night as a lesbian.[446]

Pat, a
coloured lesbian from Mitchell's Plain, says
that many older lesbians she knows "don't know what is going on outside and
they are scared to go out…. They stay at home, and get drunk. And feel safe."[447]

Noni,
an eighteen-year-old lesbian, says that in Mamelodi where she lives,

There
is an older gay man named Jacob who gets harassed a lot. I think they leave me
alone, especially because Jacob has publicly supported me. He tells them on
the street that he loves and has accepted me. Most people in the community
don't talk to Jacob.

Once
last year, when I was seventeen, the boys in the street wanted to beat me and
my friends up. Four boys came up to us and told us that they were going to
take us and rape us…. They had told some of my friends before that they were
going to rape me. My friends and I had gone to the shop and these boys got
angry. They asked, why are you coming in here? Go away. We're going to take
you. Jacob helped us, he told them to leave us alone, that they would have to
deal with him if they were going to try and hurt us. These boys are afraid of
Jacob.

We went
to the police station to report it right away. I was worried that if I didn't
report it, and was walking around at night, these boys would try it again.[448]

The
police were fair and helpful, she says: but she adds, "I wanted to find more
support. But there was nothing."

Harassment
does not just come from within one's own community; and it may intersect with
other forms of hatred. Katlego, twenty, from Mamelodi, says she had few
problems in the township. But when she moved to Pretoria and attended a
predominantly white school, "I was harassed at school regularly, either because
of my sexuality or because of my race. I was called both 'kaffir' and
'moffie'-same folks saying both things." In Pretoria, she says, "I had stones
and bottles thrown at me."[449]

The
abuse lesbian, gay, bisexual, and transgender people face can take brutal
forms. Most lesbians we spoke to believe they are disproportionately likely to
be victims of rape. In the absence of adequate statistical investigation, the
evidence is anecdotal; the fear, though, is palpable. In Cape Town, Bernedette
Muthien says,

Lesbians
are particularly targeted for gang rape. African lesbians are more likely to
be raped as lesbians in the townships. To what extent are coloured lesbians
also targeted for rape because of their sexual orientation? There are no
statistics for this, I don't know what percent of coloured lesbians are
targeted for corrective rape action. Growing up, I never heard that lesbians
were targeted in this way and so I want to know when that started happening.
Gangsterism has always existed in the townships, so you can't attribute it to
that. I don't know why black lesbians are targeted more, either. I'd like to
know how many women are being raped by brothers, fathers, etc., in coloured
townships. Why is no one studying this? Has it just been under-reported, not
studied, or what?[450]

There
is a massive rate of rape and gender-based violence in South Africa.[451] It is difficult to distinguish
particular factors and prejudices contributing to individual cases. Collection
of statistics by the South Africa Police Service (SAPS) is often insufficiently
detailed to allow tracking different types of offenses in ways that could
inform policy and state response to abuse. As with many other types of
offences, no specific 'crime code" exists to identify assaults believed to based
on sexual orientation in the general collection of crime statistics; nor are
stations mandated to collect such reports.[452]
Beverly Ditsie says, "There are no statistics being maintained" by police or
other professionals "about rape based on women's sexuality. No categories at
all. It's not like they ask, even."[453]

Joyce
works with people in Soweto on changing their sexual behaviors and norms. She
is also a mother and a lesbian openly living with HIV/AIDS. She has been
gang-raped. And, she says,

My
daughter was raped when she was six because of my coming out and telling people
about HIV. They were trying to shut my mouth…. I was only happy that she was
not infected, although she was young. It makes me angry but I'm working on
that. It's been three years but she's fine and she's a very clever child….

I was
working at Baragwanath [Baragwanath Chris Hani Hospital in Soweto] doing
voluntary work…. Most of the people I was seeing were from my community. So
[the rapists] were trying to say, "Look, you don't have to come here, you're
not a doctor, you don't have to tell us how to live although we're
HIV-positive."[454]

Joyce says,

in
Soweto when you come out and say, "Hey, I'm a lesbian," …they're always seeing
lesbians and asking "Where are they from? They're not from here, we don't see
people like this." Then you find out that it's because of their sexuality why
women are being raped. Even men who are gay are being raped….

Des'ree,
a member of the Triangle Project's Black Lesbian Support Group in Gugulethu,
told Human Rights Watch that

About a
year ago, I went out with my girlfriend, we went out and had a few drinks. We
were about to leave to go back to my home, and as we were walking out, a guy
followed and grabbed my girlfriend. He asked me if it was OK, he just wanted to
talk to her, and I said fine-they were neighbors. I was standing near them and
I heard her say she didn't want to speak to him any more. I went to say, she
doesn't want to speak to you, and then the whole thing started-where he knew we
were going out together, and he was trying to get to me through her. He told
me I was depriving him of a girlfriend and told us that he wouldn't let her go,
and we struggled with him for a while and I saw him getting more violent-I saw
him pulling out what I thought was a knife so I ran home and got my brother and
a few of his friends…. And they went with me and beat him up. After that he
never bothered us again because he knew that I am protected. We didn't go to
the police.[455]

Another
member of the support group said: "Quite a lot of lesbians have been raped.
Some of them are confused, scared to go to the police, they won't do anything
about it."

Violence
within relationships is also a recurrent story among lesbians and gays in South
Africa. Tutuzeni, in Gugulethu, said butch lesbians "believe that they have to
hit their girlfriends." The law now gives same-sex partners the same
protections as heterosexuals. Yet many do not know about those protections, or
fear to use them. Charmaine, in Gugulethu, told us:

What's
happening in the townships, you have the Domestic Violence Act and that is
something that can help straight people, but when the straight women are
preaching about the Domestic Violence Act, they never talk about it as though
it would include lesbian relationships. Many lesbians think it is only for
straight women. If your girlfriend is beating you, you will think, I can't go
to the police and if you do go, the police will say, "What are you doing?"[456]

Pat, a
lesbian remembering a relationship with a physically abusive lover, says, "I
never went to the police because I did not know that they would be able to help
me."[457]

2. State responsibilities: official responses to
abuse

Victims'
experiences with the police, and with other government agencies, differ. They
are inflected by race and class and gender-and by one's ability to articulate
and defend one's own rights forcefully. Adie, a white activist in Durban,
describes what happened after she was assaulted one night: "We went to the
Sunnyside police station to lay a charge." When she told the policeman what
happened, he "turned around and in his broken English said, ah, yes, yes,
because they called you a lesbian. And the entire police station came to a
standstill. What it told me was that there had been a workshop in that police
station about gay and lesbian rights. He didn't just ignore it. It's not like
in Zimbabwe where you fight the police and then you think I'll go to the
justice system and nobody wants to hear it…. Here we have recourse."[458]

Thulani
Mhlongo, who does HIV/AIDS counselling in Soweto, says,

At this
point I would be comfortable going to the police. We encourage gay men to
report harassment and abuse to the police. Here is an example of how things
have changed recently. Men have been denied service at a public clinic by a
Muslim doctor, because they wore earrings. I talked to the clinic manager;
there was a witness who saw what happened. He told me to come back, at which
point the doctor apologized. I think that happened because we told them that
we would go to the Equality Project and make a court case if the behavior
continued.[459]

You
don't know if you'll get good police. There are good policewomen and men, but
it's hard to find them…. Some will just laugh. But if you know your rights, if
you start telling them "I'm going to report you and I know you have to help me
and if you don't I'm going to take it further," that's when they'll say, "No,
sorry." But if you don't know your rights, they're not scared.[460]

The old
South African Police (SAP) were reformed and demilitarized in 1994, and renamed
the South African Police Service (SAPS). The 1995 South African Police Service
Act (Act 68/1995) created Community Police Forums and Boards to strengthen
relationships between police and the people they served. In 1995, SAPS banned
sexual orientation-based discrimination in internal employment.[461]

SAPS
has struggled to create a culture of rights awareness within its ranks.
Between 1998 and 2000, the service developed a program on "Human Rights and
Policing," with a package of materials to be distributed to all police stations
throughout the country. The materials (including videos, posters, and booklets)
mentioned sexual orientation among constitutional equality protections.[462] Although SAPS promised direct
trainings to accompany the packages, it was slow to develop a cadre of
trainers and begin conducting workshops; it also confronted widespread illiteracy
and indifference among officers.[463]
Outside analysts noted that officers who only received the packages but did not
undergo trainings showed little attitude change.[464] And representatives of communities
protected by the Equality Clause were rarely consulted about materials or
trainings.[465]

Few
state agencies, indeed, have invited or funded trainings by lesbian, gay,
bisexual, and transgender organizations. "Where it has happened, LGBT groups
have had to advocate for [trainings], then pay for the training themselves,"
says Wendy Isaack of the Equality Project.[466]

The
failure of SAPS to engage in outreach has contributed to continuing mistrust.
Suspicion of the police is widespread, based on a past in which¾as
Beverly Ditsie observes¾they were seen as "really only there to protect white
properties and businesses…. I think it is a general sentiment throughout the
country that you do not trust the police."[467]
But non-white LGBT people, at the least, have double reasons to distrust them:
not only a history of racism, but a history of police persecution of gays and
lesbians.[468]

Recent
incidents have perpetuated that mistrust. On August 17, 2002, police raided a
popular Johannesburg gay club, Therapy, allegedly for liquor violations.
Police reportedly called customers "fags" and "moffies"; they described the
club as a "fag joint"; drag artists employed by the club, and customers found
to be carrying condoms, were mocked repeatedly by officers who searched the
patrons. [469]

Such
accounts of homophobia make many lesbian, gay, bisexual, and transgender people
reluctant to report crimes to the police. Nonhlahla Mkhize of the Durban Gay
and Lesbian Community Health Centre says, "If you are a lesbian and go to the
police and say you were bashed by a guy they are likely to file it, but if you
say it was with another woman-they start asking you a thousand questions
instead of checking it out and following up: 'What was the person doing, what
did you say?' And it becomes your fault."[470]

Beverly
Ditsie says there is good reason not to go to the police. "I don't think the
cops presently have a consciousness about violence against lesbians…. They
don't care if you were targeted. Unless it is to make it your fault-did you
take the man's girlfriend or wife? Is that why he tried to beat you up and rape
you? They are always asking why you were being assaulted, instead of, you were
assaulted and we can help you."[471]

Lamour,
in Durban, told us one story:

I was fighting with a taxi driver. The driver took me on a long indirect
route, he made me wait while he dropped off others-I was afraid to get out
along the way and so I stayed in the taxi. The driver kept looking at me in
the rear-view mirror, then he started calling me a lesbian. At first I thought
he knew me, because I couldn't figure out how else he would know that I was
gay. But I told him that I would report him for what he said and the way he
had treated me. So I took down his registration number, and many of the other
people in the taxi supported me. But when I went to the police, they laughed
in my face…. They said, "Why are you going out with a woman, why are you doing
this?"[472]

Tutuzeni,
in a group interview in Gugulethu, confirmed the atmosphere of mistrust: "Being
a lesbian and going to the police-ach!" And another voice intervened: "It's
useless to go to the police and report. The police laugh at you and say you are
a girl, or the police can take you to the jail, they don't care about
lesbians."[473]

3. State responsibilities: community education

Others
note that the state has done little to combat community prejudices against
lesbian, gay, bisexual, and transgender people. Asked what would make her life
easier, "Maria" said: "If people accept us: community education."[474] Member of Parliament Mike Waters
says, "The government's role should be to educate people. People see gays as
promiscuous and deviant, still. The minister of education has shown courage in
introducing, against a Christian backlash, sex education in schools, including
some information on sexual orientation. But there is not much in the way of
diversity education or rights education."

One
student in Durban finds existing school programs ineffectual. "Schools should
have a discussion about gay issues as part of the curriculum. Not all kids
know about it. Some don't know the word homosexual. When kids come out then
they would have some support."[475]
Tumi told us: "The same as HIV/AIDS education has been integrated into the
school curriculum, so should queer issues."[476]

Palesa
said the government should create public "campaigns to talk about
homosexuality. So that people can see we are not evil, we are people as normal
as they are…. We are a part of South Africa, young people are growing up as
lesbians and there is not so much information for them. They don't talk about
safer sex for them, only for straight people…. The constitution protects us but
it is not implemented. They say 'rights, rights' but we are not protected.
There are still lesbians being raped, still gay men being bashed. The
government should stop talking and let us see what they can do."[477]

Like
other South African NGOs, lesbian, gay, bisexual, and transgender organizations
have limited resources and capacity to reach out even to their own
constituencies (particularly when they consist of closeted individuals), much
less to campaign for understanding in a broader community. Like other South
African NGOS, such groups often resenthaving to give support and information to
their community, and struggle to change social patterns and prejudice, with little
or no state support. Adie in Durban says, "To help lesbian and gay folks, the
government should run a consciousness-raising campaign, because 90 percent of
the population still don't know what gays and lesbians are…. Why must we
[activists and NGOs] take on that burden, to conscientize the world? Why isn't
the government taking that on?"[478]

Nonhlahla
Mkhize, of the Durban Gay and Lesbian Community Health Centre, notes that the
state provides almost no resources on homosexuality. "The city library is under-resourced
with gay and lesbian materials. There's an inventory of library resources on
gay and lesbian issues but many of them are homophobic to begin with, for
example psychiatric texts that say gay or lesbian people are abnormal or
wrong. We have developed a list for positive books and sent it to the Unicity
Council, but nothing much has come from it. Instead we have had to get books
donated and set up our own library."[479]
Yet she also observes that the NGO center, unlike neutral state institutions, is
of limited usefulness to the closeted individuals who may need it most:

Lesbians
are referred [to us] by word of mouth; most people call saying that they found
out about us from this person or that person…. Coming to the center, just to
walk in on their own is an important form of coming out….. As much as we are
proud to have a gay and lesbian center in the city, I am not sure it is helping
people to feel comfortable to come there. To most folks it is a gay center and
everyone who goes there must be gay.[480]

The
Durban Gay and Lesbian Community Health Centre distributes condoms within clubs
and communities, runs workshops and seminars, and educates communities on gay
and HIV/AIDS issues. They receive no local or central government funding. The
center's chief AIDS worker, Tsembani, says:

As HIV
coordinator, I visit hospitals and tell them about gay issues, how gay people
are different. I go to private hospitals and public clinics….. The trainings
involve the human rights issues, as well, that each individual is protected by
the constitution. We have the right to equality, privacy, and to accessing
every resource in South Africa for everyone….[481]

One obvious question is why the
state does not furnish such trainings and information itself for public clinics.
In Soweto, Thulani Mhlongo notes that "We have a national medical minimum
standard [for health care workers] so that whenever you are trained you can
work anywhere in the country. It should include a package of life skills, on
sexuality, violence, abuse, women's and sexual rights, women abuse."[482]
And Tsembani says,

The
constitution supports and protects but there's no action from the government
with respect to gay communities. There should be services initiated by the
government for gay people. Gay people should do things for themselves, but
government should spread the word also…. If it comes from the government,
people will be able to understand LGBT issues more easily.

And
government should provide information specific to the gay community about AIDS,
not just to the straight community. The center has fliers for queer
communities, but they go out to fewer people than they should. As a government
of national unity, this government should be producing that kind of information
for all people.

Vasu
Reddy, a founder of the Durban Gay and Lesbian Community Health Centre, says:

I
believe the government should be supporting the center, but the government
isn't…. The center asked for a meeting with the mayor to see what kind of
assistance the city could give us, given that it is providing assistance to the
city as a whole. There have been no follow-ups from the mayor's office at all.

I don't
think it is the role of government to be the redeeming grace of the gay and
lesbian community. But government needs to play a role…. A major challenge for
the government is to facilitate funding and expertise, and facilitate
networking among certain sectors of service providers and the lesbian and gay
community.[483]

C. Gender Identity and Expression

One
young woman in Mamelodi told Human Rights Watch, "I am a lesbian, a man.
Becaue of how I dress, what I like, I am closer to being a man than a woman.
People often ask am I a man or a woman. I say I am a lesbian."[484] And another told us, "Most people
look at me and think I am a lesbian, maybe because of how I dress, that I dress
like guys, or because of how I talk. I get called lesbian or tomboy a lot."[485]

Gender
norms are as powerful in South Africa as they are elsewhere in the region, and
the abuse directed at people who transgress against them can be as severe.
This makes it particularly important to examine what protections South Africa
accords transgender people, or gender identity and expression.

Although
the Equality Clause mentions only sexual orientation, sex, and gender-not "gender identity" or "gender expression"-the Constitutional Court affirmed, even if only cursorily,
that "transsexuals" were implicit in those provisions in its historic 1998
decision overturning sodomy laws:

The
concept "sexual orientation" as used in s 9(3) of the 1996 Constitution must be
given a generous interpretation of which it is linguistically and textually
fully capable of bearing. It applies equally to the orientation of persons who
are bi-sexual or transsexual and it also applies to the orientation of persons
who might on a single occasion only be erotically attracted to a member of
their own sex. [486]

"It has
not filtered down," says Wendy Isaack, who heads the Gay and Lesbian Legal
Advice Centre at the Equality Project. "The transgender people who seek legal
advice from us are some of the worst off." She told our researcher in 2001 how
a male-to-female transgender client who is serving an eighteen-month prison
sentence is kept in solitary confinement for twenty-three hours a day.
"Because he is pre-operative he is held in the men's section of the prison; but
then they say they have to isolate him so that he will not be raped."[487] Other clients have been harassed
and victimized in public places: "for instance, they're beaten up or arrested
because they go to the wrong bathroom in a shopping mall."[488]

South
Africa is the only country in sub-Saharan Africa where hospitals offer sex
reassignment surgery (SRS).[489]
However, the country no longer allows people who have undergone SRS to change
their legal identity papers to reflect their new, post-operative gender-an
astonishing step backwards, flouting the Constitutional Court's promises of
protection. For almost three decades the Births, Marriages and Deaths
Registration Act, passed in 1963, allowed altering the birth register of any
person who had "undergone a change of sex." In 1992, however, the act was
replaced by a new Births and Deaths Registration Act (51/1992), which reversed
that position. Section 33(3) says that any person

who was
in the process of undergoing a change of sex before the commencement of the
Act, may on completion of the said process apply … for the alteration of the
sex description in his birth register.

People
who began hormone therapy or some other aspect of the SRS process after 1992
can no longer get their papers changed. "It is an absurd legal situation,"
says Evert Knoesen of the Equality Project. "Some can normalize their legal
status if they sneaked in under the deadline-meaning that now, nine years later,
hardly anyone remains who qualifies. But no one who begins the process today
has the possibility."[490]
Transgender people whose legal identity no longer corresponds to their
appearance are left in a social as well as legal limbo. The disparity may deprive
them of their rights to access basic services, rent housing, or obtain
employment, and may subject them to steady harassment, including police
interference, in their daily lives.[491]

The
inequity meshes with other discriminatory provisions in South Africa law. For
instance, it means that female-to-male transgender people lack adequate
protections against rape-since they are still legally male, and under South
Africa's confused Sexual Offences Act, non-consensual sex between two men is
punishable only as the lesser crime of "indecent assault."[492] (The South African Law Commission's
proposed revisions to the Sexual Offences Act, which may become law in 2003,
would, however, change this situation and describe such acts as rape.)

In
1996, the issue of transgender identity, and identity papers, was addressed by
the South African Law Commission. In a report on the "Legal Consequences of
Sexual Realignment and Related Matters," the commission recommended legislation
to allow a change of papers after SRS-although it said that such a measure was
not constitutionally required.[493]
The report generated brief controversy and was then forgotten. The Commission
on Gender Equality has also been asked to address the issue; it stated vaguely,
four years ago, that "A holistic strategy is now being devised to deal with
this complaint."[494]
No such strategy has been forthcoming. Knoesen says, "The question has
disappeared into the mists of indifference."[495]

D. Knowing Rights, Accessing Redress

Adie, a
white lesbian activist in Durban, felt empowered when she went to a police
station to report an assault: "Here we have recourse…. I don't so much see the
police as a resource, but I know my rights in the country."[496]

Knowing
one's rights is crucial to enjoying them, particularly as South Africa embarks
on a project of equality which still feels almost experimental to many. People
told us again and again of needing to spell out to officials-police, health
care workers, and others-what the constitution mandated them to provide.
Having the strength to threaten legal action sometimes is the only way to get
attention to one's everyday nights.

Yet not
everyone has Adie's confidence, or knowledge. A 2000 survey of South
Africans by the independent Community Agency for Social Enquiry (CASE) found
that 36 percent of respondents had never heard of the Bill of Rights; another
29 percent could not say what its purpose was. Asked how they would make
contact with human rights institutions if needed, 59 percent of those surveyed
"said they would not know where to go."[497]

In such
a situation, people's capacity to claim their rights is obviously at risk.
Since 1996, the government has begun to conduct campaigns of rights education.
But it has not targeted lesbian, gay, bisexual, or transgender people. The
state produces no campaigns or materials to inform communities about
constitutional protections for sexual orientation.

Wendy
Isaack of the Equality Project says, "It's all rather like they give us these
rights for Christmas, they plop them down in front of you, and then the
government feels satisfied and moves on to other things. But you don't give
someone a gift without an instruction manual. I'm sorry, where's the
instruction manual?"[498]

As
Beverly Ditsie sees it, "The responsibility for informing people of their
rights should have been a function of the government arm that deals with
education. … [At the time the constitution was passed], there was no government
office given the task to raise people's awareness. … So it became that their
responsibility was to educate and advertise about the constitution with fliers-and that is a drop in the ocean."[499] Nonhlahla Mkhize, of the Durban
Gay and Lesbian Community Health Centre, said that, as a result of the
government's failure to better inform gay and lesbian people of their rights
and how to access them,

People
are aware that there is a constitution but don't know how to apply it, or how
one can use the constitution for protection. They ask [when they come into the
center] "Who do you go to to apply the law? Do you have to pay?" One client
said to me, "I am being verbally abused at home, but what am I supposed to do?
Say, 'I have my rights'? That won't do anything." And that's folks' dilemma-they know there is a body of laws but they don't have any
idea how to apply them. They need to know what to do in the moment when they
are being abused.[500]

One
activist, who declined to be named, also is skeptical of the work of some NGOs-including many lesbian, gay, bisexual, and transgender
groups and AIDS organizations-in promoting
awareness of rights. These comments perhaps reflect the divide between the
many NGOs devoted to service provision, and the fewer ones devoted to
advocacy. They suggest that many NGOs are so consumed with meeting basic needs
that they do not inform themselves about how to turn those needs into
rights-based claims:

If you
talk to one of the people who works with these groups, and you say, what are
the legal developments in LGBT rights since 1994, they just don't know…. If you
say, look at the the political atmosphere of the country and how lesbian and
gay rights have fitted in, it's difficult for them to grasp, because they don't
work with, or within, the political atmosphere of the country.[501]

One NGO
which does help lesbian, gay, bisexual, and transgender people access their
rights is the Equality Project. Wendy Isaack, the Gay and Lesbian Legal Advice
Center coordinator at the organization's offices in Johannesburg, offers legal
advice to people who cannot otherwise afford it, as well as referrals for those
who can afford to pay. The center deals with issues such as same-sex domestic
violence and people seeking protection orders; people who have been raped or
abused; people requesting asylum based on sexual orientation; sex workers; and
people denied parenting or partnership rights, including custody, shared
benefits, or pensions. Isaack takes in 100 to 150 cases per year; she
believes this represents "the tip of the iceberg." "Most people who face these
kinds of problems," she says, "don't even know of us."

Isaack
reveals the limits of what NGOs can do to help people¾whatever
their sexual orientation¾access their constitutional rights. The cheapest rate to
hire a private lawyer, Isaack told us in 2001, is R450 per hour (almost U.S.$50
at the time)-a sum vastly beyond the means of most people in townships. The
economic disparity places a huge strain on the resources of the few NGOs
providing pro bono assistance. Only three attorneys are regularly
willing to work for free for the Equality Project; the law clinic at the
University of the Witwatersrand provides some law students; but effectively,
Isaack says, "this is a one-woman show, meaning me."[502]

Beyond
the lack of individual or NGO resources, lesbian, gay, bisexual, and transgender
people face special problems in getting informed legal help, Isaack says.
"Many lawyers don't know the growing body of jurisprudence on sexual
orientation."[503]
No law school teaches a class on sexual orientation law; the standard
law-school text on the Bill of Rights devotes only four pages out of nearly
seven hundred to sexual orientation.[504]

The
Equality Project developed a two hundred-page guide to sexual orientation and
the law, explaining legal developments since 1994, in simple language, called
"Outlawed."Its publication was delayed for three years, for lack of
funds.[505]

E. Employment

Unemployment
is a harsh reality in South Africa; over one third of the population is
jobless. Different communities are differently affected. According to data
from the most recent census in 1996, people of African descent made up 90
percent of the unemployed, coloured South Africans 6 percent, and whites 2
percent.[506]
Yet according to many we interviewed, unemployment, like so many of the social
and economic difficulties in South Africa, also impacted lesbian, gay,
bisexual, and transgender people in ways not experienced by the population at
large. Many people we spoke to were unemployed-and many had given up hope of
employment. In an already unfriendly job market, LGBT people have an extra
strike against them, especially when they bear the distinguishing marks of
defying gender and cultural norms.

The consequences of lack of
access to employment are great for lesbian, gay, bisexual, and transgender
people. As Patty, an African lesbian in Mamelodi, told us, "I completed my
matric [high school degree] in 1996, and have been looking for a job, any job.
Most people look at me and think I am a lesbian, maybe because of how I dress,
[they think] that I dress like guys, or because of how I talk…. Money is a big
factor-I have no job."[507]

We spoke with many people who
take steps to conceal their sexuality rather than face possible discrimination.
Des'ree, an African lesbian living in Boweni Park, said, "My feeling is that my
lesbianism is something private and that I share with people who matter to me.
My boss and the people I worked with didn't need to know, because I am not
hanging out with them."[508] Palesa, an African lesbian
living in Soweto told us, "It is very difficult for a lesbian to get a job if
we go to get a job as ourselves. When [potential employers] see that [I] am
like this [lesbian], they become negative."[509]
In Palesa's efforts to find work, she has been asked directly about her
sexuality,

The
last time I went to an interview, the interviewer asked me if I had a
boyfriend. I said no. Then he asked me if I had a girlfriend and I just
smiled. He said he would call me back and never did. I don't know if it is
legal to ask if you have a boy or girlfriend, but it is not a question I think
I should be asked because it has nothing to do with why [I] am there. Before
he asked about my partner, the person who interviewed me was impressed that I
could answer all of the interview questions. So I don't know why I did not
get that job.[510]

Finding work within the community
where one is known can be especially difficult. As Charmaine, an African
lesbian, said, "I stay in Gugulethu, and if I apply for a job to work here and
the community knows that I am a lesbian they will think that I will teach the
children to be a lesbian. They will not give me the job and say something
like, 'You didn't fit the qualifications or the criteria' or someone with more
experience got the job. They won't hire you because they think you will teach
others or change others into being lesbians."[511]

Refusal to conform to gender
norms can mark one as different, and make one unemployable. Funeka Soldaat, a lesbian working with the Triangle
Project, observed, "it is difficult when [a lesbian] goes to look for a job and
there are these stupid dress codes. If you are a girl, you must wear a skirt."[512]

Pat, a coloured lesbian, told us
how gender conformity affected a former girlfriend's attempts to find work.
The woman's appearance-she is commonly perceived as a man-placed her outside
gender codes prescribing what women and men should look like and the work they
could do. When she applied for jobs in traditionally male fields, "Employers
would hire her [thinking she was] a man." Yet, despite the fact that she was
capable of doing the work, "as soon as they found out she had a pair of
breasts, they would say, 'No, we want a man, we thought you were a man.'"[513]

Others
reported that the fear of discrimination discouraged them from job-hunting.
Thabo told us, "I don't have a job and never tried to get one. It's very hard
to be a lesbian. If I go to get a job in a retail store, I won't try to be
femme and put on a skirt just to get the job.… [T]hey would just look at me and
not give me the job. But I won't put on a skirt. It's the hands that work,
not the skirt."[514]

The
environment of discrimination is itself experienced differentially; and some
interviewees stated they have never faced unequal treatment at work. Class,
race, and the environment of employment affect the likelihood. Carol Bower, a
white lesbian who is the executive Director of RAPCAN (Resources Aimed at
Preventing Child Abuse and Neglect), attributed her good fortune to the fact
that, as an activist for women's, children's, and gay and lesbian rights, she
has often worked in NGOs with other lesbians. Adie, a white lesbian who
has been a long-term volunteer with the Pretoria-based lesbian, gay, bisexual,
and transgender organization OUT, says: "I work in the public sector and there
I think I will not be denied promotions because I am a lesbian." At the same
time, she observes, "I don't know what kinds of resources are available to me
if I am discriminated against on the job."[515]

Virtually
all of the people we interviewed indicated that difficulties in finding
employment were compounded by-sometimes, began with-discrimination and homophobia at school and in the homes
they grew up in. As Funeka of the Triangle Project put it, "because of the
struggles we face to be who we are when growing up, especially as women and
lesbians, most of us will never go to tertiary school or to have some skills
that will make it easy for us to be employed. For some of us it was difficult
to just reach matric." By the same token, "if you have to leave home because of
the environment [before finishing school], you won't have the skills to find a
job." [516]

Few
legal cases have been brought to test both constitutional protections, and
newly enacted legislative safeguards, for sexual orientation in the workplace.
Evert Knoesen of the Equality Project says, "Fair labor practice is a
constitutional prerogative. But the jurisprudence on sexual orientation so far
has shown a big gap on labor practice. We need to work to fill it."[517]

F. Parenting

South
African law has seen significant changes in adoption rights in recent years.
Decisions by the Department of Child Welfare in the 1990s extended the right to
adopt to individual homosexuals¾while denying same-sex couples
the right to adopt jointly.[518]
As Evert Knoesen explained to Human Rights Watch in 2001, "This means that the
child [in a lesbian or gay couple's home] has no claims for maintenance from
the second parent." [519]

This has, however, changed. A
significant case was brought by Judge Anna-Marie de Vos of the Pretoria High
Court and her partner of eleven years, Suzanne du Toit. De Vos had adopted two
children six years before, and raised them jointly with du Toit. Now de Vos
questioned what would happen to the children in the event of her death: the law
gave her life partner no rights over them.[520] In late 2001, a High Court
declared unconstitutional the sections of the Child Care Act of 1983, and the
Guardianship Act of 1992, which restricted joint adoptions to legally married
couples. Knoesen told us that "adoption authorities fully support the
application for the law to be changed so that the two women may jointly adopt
the children."[521] In September 2002, the
Constitutional Court confirmed the ruling.[522]

G. Partnership

Current
South African law gives people no legal right to marry partners of the same
sex. Although a succession of court cases has extended to "permanent same-sex
life partnerships" some of the economic rights of married heterosexual
partners, the process has been piecemeal. The Equality Project estimates, based
on a study by the University of Witwatersrand Law School, that, to give gay and
lesbian couples the same rights as heterosexual married couples through
litigation, between eighty and one hundred separate laws would have to
be challenged in court.[523]

No
overall legal definition of same-sex partnership has emerged. Evert Knoesen
notes that court rulings have required, as one definition of a "permanent
partnership," the existence of "shared obligations" between the partners. Knoesen says,

It is modelled on Canadian and
European law, and very much drawn from [what in South African terms are]
upper-class, middle-class, white issues.They
will thus ask if you own a home together, or have a bank account. But many
poor couples might not have either one. How can you prove you share
obligations if you don't have any resources to do it with?[524]

No
parliamentary definition of marriage or partnership has superseded the gradual,
often haphazard, allocation of rights to same-sex couples in successive judicial
decisions (or has clarified the ambiguous status of unmarried heterosexual
couples). As a result, gay and lesbian couples can still be excluded from many
automatic benefits guaranteed to heterosexual married couples, including
property inheritance rights; the right to receive and dispose of a partner's
body in the event of death; recognition as a family and receipt of all benefits
accorded; the ability to make decisions regarding medical care should a partner
become incapacitated, including the execution of living wills; and receipt of
pension, health, and death benefits. Partnership rights in the
workplace-access to health plans and other benefits-are particularly significant to the poor in
a situation of mass unemployment, where they can help one working partner
support a family.

The
consequences of same-sex couples' exclusion from legal recognition of their
unions are manifold. Some are also true for unmarried heterosexual couples,
although the option of marriage always exists as a remedy. There are no ready
remedies available for homosexual couples.

Tumi,
an African lesbian teacher living in Springs, told us her story, which
underscores how powerless couples can be without the clear protection of the
law, as well as their dependence on the legally recognized "family" to
acknowledge their relationship. "I lost my lover in June 2000-she committed suicide in our home. I came home early from
work and found her hanging in our house. It was very hard. I was very upset."[525] Tumi called the police, who came
to their home and took away her lover's body so that they could determine the
exact cause of death. Tumi contacted her lover's family, with whom she had a
strained relationship because they disapproved of her and of her lover's sexual
orientation. A few days later, the family "just came in and took all of the
furniture, all of my lover's things. They treated me very harshly, blamed me
for what happened. I wasn't even able to go to the service for her. I was
also unable to see the post-mortem report. The medical examiner said he could
only give it to family. She and I had been together for many years."[526]

Carol
Bower, who had been with her partner for over ten years, found that the larger
society was confused about what rights were accorded her relationship. Each
woman had had a child before the relationship began, and they had raised the
children essentially as brother and sister. However, when Carol's daughter was
in the hospital, "a nurse told us that my partner and her son couldn't visit my
daughter because they weren't family. I told that nurse that they most
definitely could visit, and that as a lesbian couple we were protected by the
constitution. The nurse did not know what the right answer was, whether what I
said was true or not, and so she let them in. There is still lots of confusion
about what is legal and what is not, and we were lucky that time."[527]

Unfortunately,
many same-sex couples and lesbian, gay, bisexual, or transgender parents also
do not understand what rights they have, and are unable to advocate for
themselves effectively. The word of the law sometimes offers a confusing and
equivocal response to social discrimination.

For
Adie and Louanna, a white lesbian couple from Pretoria who have lived together
for two years, conflicting responses from "people who should know the right
answers" means that they must be far more persistent and diligent than
heterosexual couples.[528]
After living together for a year, they read about a decision in a court case
that opened the way for same-sex couples, among others, to share medical aid
benefits. The couple decided to put Louanna on Adie's medical aid. Yet
officials were unable to tell them what requirements their application should
meet. Louanna says:

I
called [the medical aid] and asked how long we needed to live together before
trying it. They said they didn't know. When Adie called, they told her that
there was no time limit. . . . So we go to the police station and write an
affidavit under oath saying, "This is my partner and I've been with her for one
year continuously and we share a bond, house, etc.," and submitted it to the
Department of Health along with an application … They wrote back and said
"Sorry, you have to be together for two years."[529]

The
Equality Project continues to mount legal challenges to exclusion, and-as
listed above-to score successes. The project also assists couples in preparing
partnership affidavits, as a basis for claiming benefits and as a hedge against
additional, economic catastrophe if illness or death should strike. Wendy
Isaack of the organization says that "around five people a week" request such
help. But she confirms that legal triumphs have not yet been understood, much
less implemented, throughout the country. "You may have the court cases, but
the denials still happen. If a private company refuses to pay out a pension to
a surviving partner, for instance, you can go to the Pension Fund Adjudicator.
There is a precedent there now. But how many people know about it? And it
will take time."[530]

Most
advocates believe that a reform of South Africa's laws on marriage is urgently
needed. The issue has found its way to the South African Law Commission, which
has examined marriage in a succession of discrete proposals. First the Law
Commission reviewed the status of African customary marriages in a major
research project, recommending that both monogamous and polygynous customary
marriages be recognized and registered, with guarantees of equal status and
capacity for women.[531]
In 1998, the Recognition of Customary Marriages Act made most of those
recommendations law. Further recommendations surrounding the recognition of
Islamic marriages have yet to be enacted.[532]

Evert
Knoesen explains that, in the mid-1990s,

given
the confused state of marriage law, the Law Commission realized . . . that it
was not possible to do it in one go. They split the question of reforming
marriage law into parts … [One part] included traditional and cultural [Hindu
or Muslim] marriages, as well as the question of same-sex relationships and
establishing, possibly, some form of non-marriage domestic partnership
recognition for heterosexuals as well. But this was rather too much too
fast. So they split the domestic-partnership and same-sex issues off, and
looked only at customary and religious marriages.[533]

Now the
Law Commission is left to tackle the thicket of questions around same-sex
relationships. A 2001 Issue Paper on "Domestic Partnerships" indicates the
direction in which it is moving. The paper suggests that same-sex
relationships should be recognized in the course of giving rights to other
"non-marriage relationships," since "large numbers of South Africans live with
their intimate partners without marrying."[534]
It notes that "domestic partnerships have come to be perceived in many cases as
functionally similar to marriage." It cites other countries which have
recognized domestic partnerships, some for same-sex and some for heterosexual
couples. What it does not note, however, is that "domestic partner" status in
those states endows a different, more restricted set of rights than does
heterosexual marriage.[535]

Indeed,
if the Law Commission models its ultimate proposal after European "domestic
partnership" laws, which limit (for example) the adoption rights of unmarried
partners, it would offer considerably less than the rights already won through
litigation under South Africa's constitution.[536] Knoesen believes that

The Law
Commission is clearly moving away from proposing a law which would give gays
and lesbians full marriage rights. They will propose some lesser status of
"domestic partnership." And indeed they appear to be moving away from a status
of domestic partnership which would require state registration. In effect,
they seem to want a form of common-law marriage-something which has not really
existed under South African law, and does not really correspond to what the
existing jurisprudence on same-sex partnerships requires.

The
commission, Knoesen says, "is unlikely to propose to Parliament even as much as
the courts have already, in some specific spheres, offered. But going through
the courts to get those rights fully extended could take years."[537]

A
recent decision confirms this pessimism. A High Court judge in Pretoria in
October 2002 dismissed an application by a lesbian couple asking that their
nine-year union be recognized as a marriage. Despite an amicus curiae brief
from the Equality Project grounding the application in the Equality Clause, the
judge flatly refused to consider constitutional issues, noting only that the
existing Marriage Act refers solely to heterosexual unions.[538]

H. State Silence

Activists
again and again stressed how many responsibilities to serve lesbian, gay,
bisexual, and transgender people the South African government still does not
meet-and how many positive opportunities it neglects.

Vasu
Reddy, co-founder of the Durban Gay and Lesbian Community Health Project,
notes, "The South African government should be vigilant and come out vigorously
and clearly and unequivocally against homophobia."[539] Yet state silence thwarts the
spirit of constitutional protection; limits individuals' ability to access
rights; forces overextended NGOs to take up burdens the state should shoulder;
and keeps the larger public ignorant that violations of human rights are wrong
and will not be tolerated. Despite positive developments in South African law,
officials have failed to speak out forcefully in support of lesbian and gay
rights, and the government has not devoted resources to community education.
There is also a dearth of attentive oversight bodies to monitor whether and how
LGBT people's rights are being upheld.

Some we
spoke to urged the state to pass existing policy through the fine-toothed comb
of the Equality Clause-examining it comprehensively and closely to eliminate
vestigial, but still dangerous, discriminatory provisions. Yet beyond that,
most felt the government should be acting on its positive mandate to promote
equality. That mandate is expressed in the Equality Act of 2000, which, in
section 25.1, requires the state inter alia to:

·Develop awareness of fundamental rights
in order to promote a climate of understanding, mutual respect, and equality;

·Take measures to develop and implement
programmes in order to promote equality …

In this
light, Bernedette Muthien called on the government not to parcel out areas of
concern into separate pigeonholes, but to understand their intersections: "If
they have poverty elimination programs, then the race, sexuality, gender stuff
should be a key part of it."[541]

Contrastingly,
Vainola Makan called for specific instruments, and allocations, on
sexual-orientation issues: "Government needs to put their money where
their mouth is, given the constitution. They have machineries for women, for
the disabled, for children, and on this one I think they must give some money."[542]

Many
people pointed out that the national government has no oversight body
specifically mandated to ensure that constitutional protections on sexual
orientation are enforced. The constitution creates a set of "Chapter 9" bodies
to observe how equality rights in that section of the document are upheld.
These include a general Human Rights Commission (HRC), and a Commission on
Gender Equality (CGE). They have power to monitor, investigate, educate, and
advise on specific cases as well as broad patterns of inequality, though they
cannot enforce calls for redress.

Carrie
Shelver, executive director of the Equality Project, told Human Rights Watch
and IGLHRC in 2001 that "No consistent policy on sexual orientation has been
issued by the Human Rights Commission or the Gender Equality Commission…. We
have had good relations with the Human Rights Commission, but commissioners in
the Commission on Gender Equality differ about their position on sexual
orientation."[543]

Evert
Knoesen adds that "The CGE barely can be said to have a grasp of the
ramifications of sexual orientation issues. And there is the issue of
resourcing: they have only a fraction of the budget of the Human Rights
Commission." Meanwhile, he contends, the HRC has been hampered by public
opposition: "They are looking at long-term problems in relation to society.
They take a progressive stand on issues where society already has strong
sentiments-for instance, refugees and illegal immigrants. The public doesn't
see them positively. And this means they haven't so much clout left to expend
on an issue like homosexuality."

In
addition, staffing at the HRC has not been organized thematically, making it
difficult to determine where complaints relating to sexual orientation should
be taken or how they should be handled. The commission, Knoesen says, is "not
very well set up in terms of organizational memory and retaining information:
there is nothing in place that will see a body of knowledge on any particular
issue being retained. We [at the Equality Project] have far more information
on sexual-orientation violations, and law, than they do."[544]

Others
urge creating special mechanisms in the executive or legislature, such as exist
for other groups protected under the constitution-for example, the Office for the Status of Women, or parliamentary
committees to monitor the implementation of protections for children and the
disabled. Bernedette Muthien believes the government's role is clear:
"There must be a sexualities officer in the Office of the President. That would
make a huge difference; otherwise the clause will be just lip service. In
practice, there's a Status of Women Office, a Disabilities Office, etc. A
sexualities officer would really show government's commitment to eradicating
violence against queers, violence which is personal, structural and cultural,
and endemic in townships and rural areas."[545] And Carol Bower, a white
lesbian activist who heads RAPCAN, feels that "there must be a way to hold the
government more accountable, to challenge the government to do things obligated
by the constitution. For example, there is a joint monitoring committee in
Parliament for women. Why isn't there one for gay and lesbian issues?"[546]

Amid
the state silence, some lower government officials have felt free to flirt with
homophobia. In an April 2001 meeting of the Durban Investment Promotion
Agency, the city's mayor, Obed Mlaba, said: "We should stop comparing ourselves
to cities like Cape Town. In fact, Cape Town can stay with its moffies and its
gays."[547]

Amid
wide condemnation of his remarks, the mayor eventually issued a formal apology
through a spokesperson, assuring the public that "the rights of all
individuals, regardless of race, religion or sexual preference, are protected
by our new Constitution. He [the Mayor] is very proud of the Constitution and
fully supports it."[548]

Vasu
Reddy of the Durban Gay and Lesbian Community Health Centre was grateful for
the mayor's apology¾but considered it undercut by his office's unresponsiveness
to outreach by the group, the only gay and lesbian service organization in
KwaZulu-Natal province. The center had asked the mayor to meet and discuss
joint work on fighting stigma within the city. Reddy says,

We want
to explore how the Unicity [Durban] could form a partnership with us, since our
center is providing a service to the city as a whole, not just gay and lesbian
people. The deputy mayor came to the center's opening in May and again
apologized for [the] mayor's comments. We asked again for a meeting with the
mayor to see what kind of assistance the city could give to the center, again
given that it is providing assistance to the city as a whole. There has been
no follow-up from the mayor's office at all.[549]

Other
politicians have also engaged in homophobic rhetoric. In 1999, Graham McIntosh
of the opposition Democratic Party attacked Judge Edwin Cameron, a prominent
public figure living with HIV/AIDS, saying that Cameron's serostatus "is a
logical consequence of his self-proclaimed, public and enthusiastic support for
and practice of a homosexual orientation."[550]

Peter
Marais, who has served as mayor of Cape Town and premier of Western Cape
Province, has repeatedly criticized constitutional protections for gay and
lesbian rights. In 2002, Marais accused a "gay lobby" within the Democratic Alliance
party[551]
of trying to destroy him with sexual-harassment allegations: "They want to
attack my image as a Christian by attaching sleaze to me so that this will make
my argument against homosexuals less credible."[552] The ANC (a coalition partner of
Marais' New National Party in the province) distanced itself from his
remarks-but did so by denying their political dimension or effects, calling
them "personal."[553]

The state's silence also creates
interstices in which individuals can be subjected to vilification. Sheryl
Ozinsky is the openly lesbian manager of Cape Town
Tourism (CTT). CTT promotes Cape Town as a tourist destination
internationally, and receives 25 percent of its funding from the city. In
early 2001, Ozinsky came under fire from religious groups when she announced
CTT's intention to pursue the gay niche market and to promote Cape Town as a
gay-friendly city. According to Ozinsky, her pursuit of so-called pink tourism
rose from practical concerns: "It is a lucrative niche market for us. Gay tourists
travel more than other tourists, four and a half times per year versus one time
per year for heterosexuals. They spend a lot more money, add flavor to a
destination. We have been pursuing the pink tourism niche market and as a
result Cape Town is probably the sixth most popular gay destination in the
world currently."[554]

From
approximately February to May of 2001, Ozinsky received thousands of letters at
her home and office, many threatening harm. Others went to the press: "I have a
file … of anti-gay letters to the press from anti-gay Muslim and Christian
groups who were attacking me personally for being gay and for using my position
to put forth my own agenda of bringing more gays to Cape Town." She says, "I
took my case to the Human Rights Commission. I am waiting to hear back, but
it's been months. The case is based on the fact that I am being attacked
personally, as a gay person. If a heterosexual person were in this position,
they never would have been attacked like this, or accused of taking taxpayer
money to promote family tourism into the city. But because I am gay I am
accused of promoting my own agendas."[555]

Ozinsky
says:

We were
quite surprised at this outburst because if you replace the word black or Jew
or Hindu for the word gay, then it becomes another matter entirely and what
right does anybody have to voice such negative opinion about gay people when
they would never do that about blacks or Jews? It would be unheard of. There
would not even be a platform in the daily newspaper through which you could
expose such unconstitutional values. It's almost hate speech…. While it is
important to talk about issues and get them out, I think there is a fine line
between talking openly about issues and speech that incites others and in my
opinion this did.[556]

Public
officials were largely silent. The board of CTT, which includes three
representatives from the City of Cape Town government, had endorsed Ozinsky's
support of gay tourism, but neither she nor CTT received official support from
any government sector. "The ANC has crafted this constitution, but throughout
the debate the ANC was utterly silent. I had an off-the-record conversation
with an ANC politician and was told it is a very sensitive issue for the ANC
and that they couldn't come out and openly support me."[557] For Ozinsky, the ramifications of
this isolation extended far beyond her own situation. "It scared me hugely,
because if this is a government that prides itself on human rights and couldn't
come out to support me openly because they were worried about the Christian or
Muslim vote, then my God, we are in for a tough ride as South Africans. And
some of the other political parties were absolutely silent, including the
minister of tourism and everybody involved in tourism."[558]

On an international stage as
well, elected officials from South Africa have usually remained silent about
lesbian, gay, bisexual, and transgender concerns. There have been exceptions,
particularly the support given by South African diplomats to sexual-orientation
issues at a number of international conferences.[559]
However, South Africa has not criticized homophobic
comments by the leaders of Namibia, Zimbabwe, or other states; nor has it
supported activists who do so.

South Africa has particularly
shown itself reluctant to offend other members of the Southern African
Development Community (SADC). SADC has progressive positions on gender; for
example, a 1997 policy statement committed the organization to eradicating
"norms, religious beliefs, practices and stereotypes which legitimize and
exacerbate the persistence and tolerance of violence against women."[560]

Yet South Africa has not vocally
opposed policies in other SADC countries which encourage those stereotypes to
survive. Some of the depth of this reluctance can be seen in the language of
asylum cases in South Africa. Although South Africa's immigration policy in
principle recognizes the right to asylum based on sexual orientation-and
increasingly emigrants from repressive SADC states apply-few if any such claims
have been granted. Wendy Isaack says, "I worked on
the case of a white lesbian seeking asylum from Zimbabwe. The answer from the
Immigration Board was, 'It is not possible a white woman would experience
difficulties there, and anyhow, Zimbabwe is a SADC country.'"[561] Francis Chisambisha, of Zambia,
sought asylum in South Africa from persecution in Zambia. His well-documented
claim was rejected at the first instance; the Immigration Board observed in
disbelief that Zambia was a democracy and a SADC member.[562]

Vasu
Reddy says, "Government should speak out within the broader context of the
'un-African' issue, on which the South African government has been particularly
silent…. If we are all supposedly subscribing to human rights, we cannot be
selective about those rights. We cannot, to use a Thabo Mbeki phrase, pursue a
'silent diplomacy' on issues of homosexuality and its un-Africanness as
articulated by Nujoma and Mugabe and the rest."[563] Reddy adds,

If it
[condemnation of homophobic speech and actions] is articulated by a leader or
leaders, then it immediately sends messages and codes which can be translated
into action by the populace…. The effect would echo throughout the region and
be a part of nation-building and rebuilding the continent, which is such an
integral part of Mbeki's presidency-this issue
of recovering ourselves as Africans. Part of that mission has to be … taking a
stand on homophobia .… Despite our progressive agenda in terms of the
constitution, we need to be verbal and articulate about upholding those tenets.[564]

According
to Evert Knoesen, "The government has a clear responsibility in the region
around gay and lesbian issues, but is choosing to be silent, to make no public
statement concerning other governments' human rights violations."[565]

I. Realizing
Rights

Nearly everyone we interviewed who
identified as gay, lesbian, bisexual, or transgender in South Africa was
aware, and proud, of the constitutional protection for sexual orientation. But
most who had heard of it had not been helped by it. For the vast majority of
people we interviewed, particularly young African lesbians and gay men living
in cities, townships, and rural areas, the Equality Clause had not changed the
degree or depth of the discrimination and harassment they experienced.

The Equality Clause remains, for
the vast majority of South Africans, largely unfelt. It is a distant rumor, a
source of hope as well as pride, but unfulfilled.

We asked each of the people we
interviewed what they thought would make a difference: how could the government
make the clause work for them?

What follows is a reflection on
how to make a right realizable.

Governments cannot simply rest
content with putting rights on paper. Nor can they confidently congratulate
themselves on the bare facts of legislative or jurisprudential progress. To be
sure, much has been done in the courts and Parliament in South Africa. Much
remains to be done, and should be. Laws need to be passed, or judicial action
taken, to remove the last traces of discriminatory provisions on sexual
conduct, and to define marriage in an inclusive way. But even when the law
books have been purged of prejudice and made consistent with the language of
the Equality Clause, more will still need to be done before the words describe
realities for South Africa's people.

Governments need to look at each
form of inequality and injustice with an eye to at least four matters. They
must understand its particularity;they must also understand its intersections
with other forms. They must identify how redress can be made readily
accessible. And they must promote rights and the knowledge
of rights, and in the process-as South African law commands-actively promote
equality.

Governments must analyze the particularity
of the inequality suffered by, or discrimination directed at, a community,
status, or identity. Homophobia is rooted in a different set of cultural
prejudices and social circumstances from, for instance, discrimination against
the disabled. It must be addressed in part by disentangling those distinctive
contributing factors, and dispelling them in communities and families.
Homophobia affects different kinds of communities than does, for example,
racism: its victims are differently organized and differently able to resist
it. This means that governments should set up particular mechanisms to
address, redress, and combat particular forms of inequality. It also means
that policies, laws, and practices should be looked at closely to find the
hidden ways in which they might further discrimination against particular
identities and groups. For example, the decay of
public transport systems needs to be seen not just as a problem for the
"general population"-but as a life-or-death issue for non-conforming women who
may be singled out for rape if walking alone at night. In addition to working
closely with NGOs who can contribute to such understandings, governments should
designate a focal point on each area of inequality within each ministry and
department, to carry forward comparable analyses across all its policies. Not
all inequalities are alike. States must move toward equal treatment by
addressing specific injustices through appropriate means.

Governments should also, however,
attend to the intersections of identities, of rights, and of forms of
discrimination. On the one hand, no one is "just" gay or lesbian. Everyone
has other identities, fits under other forms of status, which can partially
empower or further disempower them. Nor can any violation be altogether
separated from the context of other abuses or inequities in a society, which
may enable it or extend its effects. African or coloured lesbians and gays may
be particular targets of violence in townships; but the abuse is inseparable
from the almost-unendurable poverty which makes violence a general condition
there. Apparent protections which suppose the existence of prosperous,
property-owning rights-bearers-such as definitions of "partnership" which
require showing "shared obligations"-may omit or unfairly burden the poor who
have less by those standards to share, or show.

Most notably, many people spoke
to us at length about how inequality between the sexes relegates many South
African women to lives as second-class citizens. Women and girls across many
of the country's cultures are taught to obey their fathers and husbands, to
defer their own needs until those of men are met, and to accept violence as an
inevitable form of discipline within the family. Because the roles of men and
women are so entrenched, and because men and women who identify as gay or
lesbian often challenge those roles, women's rights are an inextricable aspect
of rights for lesbian, gay, bisexual, and transgender people. It is in the
constant threats of sexual violence reported by lesbians that the intersection
between sexism and homophobia is most clear. Many men, angry that women appear
to be rejecting them, want to "cure women" by reasserting their violent
control. But self-identified gay men and transgender people also suffer from
standing at the crossroads of gender and sexuality. Many are persecuted
because they refuse to conform to norms of what "men" or "women" should be.

Governments must identify how
redress can be made accessible.There are clear actions that the
South African government can and should take-most notably, creating a special
commission or other mechanisms through which people could report discrimination
or harassment based on sexual orientation. Such a mechanism would have the
expertise and resources to investigate the complaints, advise a remedy, and
identify patterns of violations as well as proposing legal and policy change.
This is particularly important in South Africa where very few people have the
resources to retain lawyers in legal proceedings-and where only one NGO
regularly conducts litigation under the Equality Clause. Yet other steps are
needed as well. The government needs to ensure adequate training in sexual
orientation law as well as other aspects of equality law, to ensure a ready cadre
of lawyers to take up cases where legal action is required. It should create
incentives for attorneys to engage in pro bono work. It should ensure
that people know about opportunities for redress-and that state agencies and
officials are trained in how to respond. It does no good that
domestic-violence protection orders are now available to same-sex partners, if
the information is not publicized in their gathering places or communities¾or if people still fear policemen will laugh
at them when they step through the station door.

This leads to the next and
largest responsibility. The state must promote rights. It must do so,
first, by training its own personnel in both the particularity and the
intersections of rights protections. Police, for example, must know that
"sexual orientation" is a protected status, and grasp its multiple cultural and
social meanings; they must be ready to respond sensitively to lesbian, gay,
bisexual, and transgender victims of crimes and violations; they must
understand how gender, or race, or the fact of poverty, makes some LGBT people
additionally vulnerable; they must engage in outreach to affected communities,
to rebuild trust after years of police harassment and police-endorsed abuse.
But the state must also use the multiple tools at its disposal to educate
individuals and communities. Schools must teach about sexual orientation, not
only in the context of sexual health or HIV/AIDS, but as an issue of equality
in a rights-education curriculum. Press and publicity campaigns should promote
images of equality in which sexual orientation¾and
lesbian, gay, bisexual, and transgender faces and voices¾are an unequivocal part. The South African government should
work with community-based groups and NGOs in developing these campaigns, as
well as other educational materials.

The whole work of rights
education-whether within marginalized communities, or in the population as a
whole-must not fall on those vulnerable to violations. The state must be a
full partner as well as a sponsor. It must fund and consult with NGOs fairly,
without discrimination, recognizing their right not only to provide essential
services, but to advocate against the state as well. But the state must not
shunt its duties onto civil society. The state must itself undertake the task
of outreach to the possible victims-and the potential perpetrators-of
violations.

As part of this, the South
African government must publicly affirm the Equality Clause, and promote its
values in international relations. South Africa's official silence in the face
of homophobia, at home or abroad, is ultimately an affront to the principles on
which its new democracy is founded.

None of the men and women we
spoke to in South Africa, or elsewhere, were passively waiting for government
intervention. They were organizing, campaigning, doing outreach-or leading
their lives boldly, walking down streets proudly, looking for hope or love.
Many spoke of wanting to claim their own rights, to take charge of their
futures. Yet many felt confined by the past, by a complex of intersecting
injustices: their lack of education-often a direct result of being expelled for
being gay, lesbian, transgender-their joblessness, their poverty, their
powerlessness in the family or community.

"We are a country of change," one
gay man told us. "We have so many things in the constitution that ordinary
people know is there: but every day they live a life in which they are still
excluded, opposed, discriminated against."[566]
Hopelessness, passivity, fear, and self-loathing result from the endless
experience of a chain of negations. Until the South African government breaks
that chain, by taking the full breadth of the Equality Clause seriously, part
of its population will remain excluded from the constitution's promise.

VI. Conclusion

State-sponsored homophobia-the
campaign of hate engaged in by political leaders in southern Africa¾devastates lives. It strikes at core values
of democratic societies. And it violates international human rights standards.

A. International Law

1. The right to freedom from discrimination, and the
right to privacy

State rhetoric identifying
lesbian, gay, bisexual or transgender people as "dogs and pigs," as "perverts,"
as alien influences to be "uprooted" or "eradicated" from the national life,
singles people out on the basis of their sexual orientation or gender identity
and marks them in the public view as permanently unequal. It constitutes
discrimination and incites to further discrimination.

The International Covenant on Civil
and Political Rights (ICCPR) affirms the equality of all people, in two
significant provisions.[567]
Article 2.1 states:

Each State Party to the present
Covenant undertakes to respect and to ensure to all individuals within its
territory and subject to its jurisdiction the rights recognized in the present
Covenant, without distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property,
birth or other status.

Article 26 affirms:

All persons are equal before the
law and are entitled without any discrimination to the equal protection of the
law. In this respect, the law shall prohibit any discrimination and guarantee
to all persons equal and effective protection against discrimination on any
ground such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status.

In the 1994 case of Nicholas
Toonen v Australia, the U.N. Human Rights Committee, which monitors
compliance with and adjudicates violations under the ICCPR, heard a complaint
concerning a "sodomy law" punishing consensual, adult homosexual conduct in the
Australian state of Tasmania. The Committee held that such laws violate
protections against discrimination in the ICCPR, as well as article 17, which
protects the right to privacy.[568]
Specifically, the Committee held that "sexual orientation" was a status
protected under the ICCPR from discrimination, finding that "the reference to
'sex' in articles 2, para. 1, and 26 is to be taken as including sexual
orientation."[569]

The Human Rights Committee's
ruling on "sodomy laws" drew on a standing body of jurisprudence against them.
The European Court of Human Rights found in three cases in the 1990s that such
laws violated the right to privacy in article 8 of the European Convention for
the Protection of Human Rights and Fundamental Freedoms.[570]
Although the European Court customarily gives a wide "margin of appreciation"
to states in respect of difference in practices and values, the Court
specifically found that "the protection of public morals" did not present an
adequate justification for restricting the right to privacy on the basis of
sexual orientation.[571]
In Toonen, the U.N. Human Rights Committee also declared that it "cannot
accept either that for the purposes of article 17 of the Covenant, moral issues
are exclusively a matter of domestic concern."[572]

The U.N. Special Rapporteur on
Extrajudicial, Summary, or Arbitrary Executions has observed the relationship
between sodomy laws-and, by extension, other forms of state rhetoric-stigma,
and violence:

The Special Rapporteur … believes
that criminalizing matters of sexual orientation increases the social
stigmatization of members of sexual minorities, which in turn makes them more
vulnerable to violence and human rights abuses, including violations of the
right to life. Because of this stigmatization, violent acts directed against
persons belonging to sexual minorities are also more likely to be committed in
a climate of impunity.[573]

However, the findings of the U.N.
Human Rights Committee, and the protections of the ICCPR, go far beyond
requiring the abolition of sodomy laws. The Committee has elsewhere found that
the prohibitions of discrimination in the ICCPR place a broad mandate on states
to remedy unequal treatment in all areas of life. Thus it has declared that
article 26 "prohibits discrimination in law or in fact in any field regulated
and protected by the public authorities." Any state that regulates private employment,
for example, therefore is responsible for offering protections against
discrimination in that sphere-including protections against discrimination
based on sexual orientation. The Committee has also found that the article bars
acts and policies that are discriminatory in effect, as well as those
that intend to discriminate. [574]

The Human Rights Committee has
urged states to include in their constitutions the prohibition of
discrimination based on sexual orientation.[575]
In its 1998 observations on the state report of Zimbabwe, the Committee noted "with concern that homosexuals are subjected to
discrimination… The Committee recommends that such legislation [enabling
discrimination] be brought into conformity with the Covenant."[576]

2. The right to freedom of expression

Article
19(2) of the ICCPR affirms that:

Everyone
shall have the right to freedom of expression; this right shall include freedom
to seek, receive, and impart information and ideas of all kinds, regardless of
frontiers, either orally, in writing or in print, in the form of art, or
through any media of his choice. [577]

States violate this right when
they suppress information on gay and lesbian existence, eradicating it from
either the state-controlled or private media. States violate this right when,
as in Zimbabwe, they censor gay-themed films or seize gay and lesbian books and
magazines. But states also violate this right when they use obscure laws on
public conduct or behavior to harass and penalize people for the expression of
their sexual orientation or gender identity. States violate this right when
they encourage public officials-or incite or excuse other agents-in violence or
harassment against men or women who dress, walk, or act in ways at odds with
social norms for expressing gender.

3. The rights to freedom of association and assembly

Article 21 of the ICCPR states
that "The right of peaceful assembly shall be recognized." Article 22.1 of the
ICCPR affirms that "Everyone shall have the right to freedom of association
with others."

States violate these rights when
they incite violence against, or deny equal protection to, gays and lesbians
participating in public manifestations or peaceful marches. They violate these
rights when they offer no protection to gays and lesbians subject to violence
when they gather, socialize, or meet in public places, including bars, pubs,
and clubs. They violate these rights when, on discriminatory grounds, they
deny groups and NGOs the right to register and enjoy a formal, legal
existence. They violate these rights when they incite destructive harassment
against NGOs and civil society actors for their defense of, or debates about,
basic human rights and fundamental freedoms, including those of marginalized
identities and communities.

The U.N. General Assembly's
"Declaration on Human Rights Defenders" calls special attention to the
important role of these rights in the defense of all human rights. In its
article 5, the Declaration affirms that

For the
purpose of promoting and protecting human rights and fundamental freedoms,
everyone has the right, individually and in association with others, at the
national and international levels:

a) To meet or assemble peacefully;

b) To form, join and participate in non-governmental
organizations, associations or groups;

c) To communicate with non-governmental or
intergovernmental organizations.

Article 6 of the Declaration holds that:

Everyone
has the right, individually and in association with others:

(a) To know, seek, obtain, receive and hold information
about all human rights and fundamental freedoms, including having access to
information as to how those rights and freedoms are given effect in domestic
legislative, judicial or administrative systems;

(b) As provided for in human rights and other applicable
international instruments, freely to publish, impart or disseminate to others
views, information and knowledge on all human rights and fundamental freedoms;

(c) To study, discuss, form and hold opinions on the
observance, both in law and in practice, of all human rights and fundamental
freedoms and, through these and other appropriate means, to draw public
attention to those matters.

And article 7 affirms that:

Everyone
has the right, individually and in association with others, to develop and
discuss new human rights ideas and principles and to advocate their acceptance.

Indeed, the Special
Representative of the U.N. Secretary General on Human Rights Defenders has
called attention to the "greater risks… faced by defenders of the rights of
certain groups as their work challenges social structures, traditional
practices and interpretations of religious precepts that may have been used
over long periods of time to condone and justify violation of the human rights
of members of such groups. Of special importance will be… human rights groups
and those who are active on issues of sexuality, especially sexual orientation…
These groups are often very vulnerable to prejudice, to marginalization and to
public repudiation, not only by state forces but by other social actors."[578]

All these rights have been
violated or endangered through the rhetoric employed, the directives issued,
and the repressive laws enforced by state officials in Botswana, Namibia,
Zambia, and Zimbabwe.[579]

4. The right to freedom from arbitrary arrest and
detention

Article 9.1 of the ICCPR states:

Everyone has the right to liberty
and security of person. No one shall be subjected to arbitrary arrest or
detention. No one shall be deprived of his liberty except on such grounds and
in accordance with such procedure as are established by law.

The travaux preparatoires to
article 9 of the Convention make clear, in the words of one commentator, that
"arbitrary" means not simply "unlawful" arrest or detention, but includes
police or judicial actions that display "elements of injustice,
unpredictability, unreasonableness, capriciousness and unproportionality,"
though the reason for the arrest may lie within the letter of the law. In
particular, "the specific manner in which an arrest is made must not be discriminatory
and must be able to be deemed appropriate and proportional in view of the
circumstances of the case."[580]

The U.N. Working Group on
Arbitrary Detention has affirmed that the detention of people solely on the
basis of their sexual orientation violates fundamental human rights-even though
the laws under which they are detained may not expressly refer to homosexual
conduct.[581]

The ICCPR's protections are
violated when state agents--acting on the basis of sodomy laws, or of vaguely,
sweepingly written laws punishing a broad range of public conduct--arrest or
detain people on the basis of their sexual orientation, or their gender
expression or identity.

5. The right to freedom from torture

Article 7 of the ICCPR states: "No one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment."

This basic, non-derogable
protection is violated when state agents beat, maltreat, and abuse people on
the basis of their sexual orientation and gender identity. It is violated when
non-state actors (whether in the community, in public or private places, or in
the family) inflict physical abuse, including sexual abuse, on people because
of their sexual orientation or gender identity or expression, enjoying impunity
granted by-or acting at the urging of-state authorities.[582]

A lengthy recent statement by the
U.N. Special Rapporteur on Torture to the General Assembly is relevant in this
regard. It examines, and condemns, many of the causes and consequences of
abuses detailed in this report.

The Special Rapporteur notes that
a considerable proportion of the incidents of torture carried out against
members of sexual minorities suggests that they are often subjected to violence
of a sexual nature, such as rape or sexual assault in order to "punish" them
for transgressing gender barriers or for challenging predominant conceptions of
gender roles.

The Special Rapporteur has
received information according to which members of sexual minorities have been
subjected, inter alia, to harassment, humiliation and verbal abuse
relating to their real or perceived sexual orientation or gender identity and
physical abuse, including rape and sexual assault. He notes with concern that,
according to the information received, the rape of a man or of a male-to-female
transsexual woman is often subject to the lesser charge of "sexual assault,"
which carries lighter penalties than the more serious crime of rape in a number
of countries.… Ill-treatment against sexual minorities is believed to have also
been used, inter alia, in order to make sex workers leave certain areas,
in so-called "social cleansing" campaigns, or to discourage sexual minorities
from meeting in certain places, including clubs and bars.

While no relevant statistics are
available to the Special Rapporteur, it appears that members of sexual
minorities are disproportionately subjected to torture and other forms of
ill-treatment, because they fail to conform to socially constructed gender
expectations. Indeed, discrimination on grounds of sexual orientation may
often contribute to the process of the dehumanization of the victim, which is
often a necessary condition for torture and ill-treatment to take place. The
Special Rapporteur further notes that members of sexual minorities are a
particularly vulnerable group with respect to torture in various contexts and
that their status may also affect the consequences of their ill-treatment in
terms of their access to complaint procedures or medical treatment in state
hospitals, where they may fear further victimization, as well as in terms of
legal consequences regarding the legal sanctions flowing from certain abuses.
The Special Rapporteur would like to stress that, because of their economic and
educational situation, allegedly often exacerbated or caused by discriminatory
laws and attitudes, members of sexual minorities are deprived of the means to
claim and ensure the enforcement of their rights, including their rights to
legal representation and to obtain legal remedies, such as compensation…

Discriminatory attitudes to
members of sexual minorities can mean that they are perceived as less credible
by law enforcement agencies or not fully entitled to an equal standard of
protection, including protection against violence carried out by non-state
agents. The Special Rapporteur has received information according to which
members of sexual minorities, when arrested for other alleged offences or when
lodging a complaint of harassment by third parties, have been subjected to
further victimization by the police, including verbal, physical, and sexual
assault, including rape.[583]

6. The human rights of the child

Children have particular rights to
protection from violence and from torture or cruel or inhuman treatment. The
Convention on the Rights of the Child (CRC)[584]
affirms in its article 19 that youth have the right to protection from "all
forms of physical or mental violence, injury or abuse, neglect or negligent
treatment, maltreatment or exploitation including sexual abuse, while in the
care of parent(s), legal guardian(s) or any other person who has the care of
the child." The U.N. Committee on the Rights of the Child has cited this
provision in calling for state action against abuse and abandonment of children
within the family.[585]

The Convention on the Rights of
the Child also affirms, in article 28.1, that:

States Parties recognize the
right of the child to education, and with a view to achieving this right
progressively and on the basis of equal opportunity, they shall, in particular:

(a) Make primary education compulsory and available free to
all;

(b)
Encourage the development of different forms of secondary education, including
general and vocational education, make them available and accessible to every
child, and take appropriate measures such as the introduction of free education
and offering financial assistance in case of need;

(c)
Make higher education accessible to all on the basis of capacity by every
appropriate means;

(d)
Make educational and vocational information and guidance available and
accessible to all children;

(e)
Take measures to encourage regular attendance at schools and the reduction of
drop-out rates.

These rights are violated when
families expel or abuse children because of their sexual orientation, or gender
identity or expression, and when state authorities undertake no effective
interventions to address or prevent those actions. These rights are violated
when children are harassed or abused at school, or expelled from school,
because of their sexual orientation, or because of the way they do not
correspond to gender norms for appearance or behavior.

The
International Covenant on Economic, Social and Cultural Rights (ICESCR)[586] also affirms the right to
education, and adds in its article 13.1:

States parties agree that
education shall be directed to the full development of the human personality
and the sense of its dignity, and shall strengthen the respect for human rights
and fundamental freedoms. They further agree that education shall enable all
persons to participate effectively in a free society, promote understanding,
tolerance and friendship among all nations and all racial, ethnic or religious
groups, and further the activities of the United Nations for the maintenance of
peace.

The CRC expands on these mandates,
requiring in article 29.1 that education shall be directed at, inter alia,

The
development of respect for human rights and fundamental freedoms, and for the
principles enshrined in the Charter of the United Nations;…

The
preparation of the child for responsible life in a free society, in the spirit
of understanding, peace, tolerance, equality of sexes, and friendship among all
peoples, ethnic, national and religious groups and persons of indigenous
origin…

States neglect these obligations,
and violate the rights of children, when they fail to introduce curricula that
will promote and advance the human rights of all peoples, including those
suffering discrimination based on their sexual orientation. States overtly
violate these obligations, and show contempt for the rights of children, when
they allow educational systems to become centers for disseminating prejudice
and practicing hatred.

7. The human rights of women

The Convention on the Elimination
of All Forms of Discrimination Against Women (CEDAW)[587]
commits states in its article 1 to the eradication of "any distinction,
exclusion or restriction made on the basis of sex which has the effect or
purpose of impairing or nullifying the recognition, enjoyment or exercise by
women, irrespective of their marital status, on a basis of equality of men and
women, of human rights and fundamental freedoms in the political, economic,
social, cultural, civil or any other field."

The Convention also protects the
rights of women to economic and social equality, including participating in
both the planning and the benefits of development, as well as their right to
"participate in all community activities" (article 11, article 14). It
protects their right to equality in education, including the "elimination of
any stereotyped concept of the roles of men and women at all levels and in all
forms of education" (article 10.c). And it mandates that states "modify the
social and cultural patterns of conduct of men and women, with a view to
achieving the elimination of prejudices and customary and other practices which
are based on the idea of the inferiority or the superiority of either of the
sexes or on stereotyped roles for men and women" (article 5.a).

These protections are violated
when states reinforce stereotyped gender roles by heaping further stigma upon
those who contravene them. They are violated when states encourage communities
to discriminate against, or drive out, non-conforming women. They are violated
when states vilify women's activists striving to ensure and protect equality
rights. They are violated when states condone an atmosphere of violence, in
which women who do not conform to gender roles or other social expectations may
be abused or raped, in public spaces or in the home.

The Convention requires states to
act against abuse and discrimination in families and communities. The U.N.
Special Rapporteur on Violence Against Women has observed that communities

"police" the behaviour of their
female members. A woman who is perceived to be acting in a manner deemed to be
sexually inappropriate by communal standards is liable to be punished… In most
communities, the option available to women for sexual activity is confined to
marriage with a man from the same community. Women who choose options which are
disapproved of by the community, whether to have a sexual relationship with a
man in a non-marital relationship, to have such a relationship outside of
ethnic, religious or class communities, or to live out their sexuality in ways
other than heterosexuality, are often subjected to violence and degrading
treatment… Women, "unprotected" by a marriage union with a man, are vulnerable
members of the community, often marginalized in community social practices and
the victims of social ostracism and abuse.[588]

The
Convention also requires states to refrain from discrimination themselves, or
from legal or other language that confirms or incites it. In its comments on
the state report of Kyrgyzstan, for instance, the Committee on the Elimination
of Discrimination Against Women stated:

The
Committee is concerned that lesbianism is classified as a sexual offence in the
Penal Code.

The
Committee recommends that lesbianism be reconceptualized as a sexual
orientation and that penalties for its practice be abolished.[589]

8. The right to health

The International Covenant on
Economic, Social, and Cultural Rights (ICESCR), in its article 12.1, affirms
"the right of everyone to the highest attainable standard of physical and
mental health."

In its General Comment 14, the
U.N. Committee on Economic, Social, and Cultural Rights (which evaluates the
realization of rights under the Covenant) specifically noted that this article
means states may not discriminate based on sexual orientation in the enjoyment
of this right.

By
virtue of article 2.2 and article 3 [equality provisions in the treaty], the
Covenant proscribes any discrimination in access to health care and underlying
determinants of health, as well as to means and entitlements for their
procurement, on the grounds of race, colour, sex, language, religion, political
or other opinion, national or social origin, property, birth, physical or
mental disability, health status (including HIV/AIDS), sexual orientation
[emphasis added] and civil, political, social or other status, which has the
intention or effect of nullifying or impairing the equal enjoyment or exercise
of the right to health…

With
respect to the right to health, equality of access to health care and health
services has to be emphasized. States have a special obligation to provide those
who do not have sufficient means with the necessary health insurance and
health-care facilities, and to prevent any discrimination on internationally
prohibited groundsin the provision of health care and health services,
especially with respect to the core obligations of the right to health.[590]

The
Committee also emphasized that the right to health includes "access to
health-related education and information, including on sexual health"; it
observed that information accessibility "includes the right to seek, receive,
and impart information and ideas concerning health issues." The Committee
called on states to refrain from "censoring, withholding or intentionally
misrepresenting health-related information, including sexual education and
information, as well as from preventing people's participation in
health-related matters." And it required states to meet "obligations in the
dissemination of appropriate information relating to healthy lifestyles and
nutrition, harmful traditional practices and the availability of services."[591]

Governments
violate these protections when they deny, or condone denying, medical services
to people based on their sexual orientation or gender expression or identity.
Governments violate these protections when they fail to provide-or when they
censor-health information targeted at vulnerable individuals and groups, in the
context of HIV/AIDS or other diseases. Governments also violate these
protections when they interfere with or penalize the efforts of NGOs and
civil-society actors to address health issues, or to engage in outreach on such
issues to affected populations.

9. The right to marry and found a family

Article
23.2 of the ICCPR states, "The right of men and women of marriageable age to
marry and to found a family shall be recognized."

This
article does not define marriage as between a man and a woman. In fact, there
is no such definition of marriage in the international instruments. In its
absence, the strength of international protections against
discrimination-including protections based on both sex and sexual
orientation-applies to the question of who enjoys this right, and how.
Excluding gays and lesbians from the status of civil marriage constitutes
discrimination based on sexual orientation. However, it can also be construed
as discrimination based on sex, since marriage would be open to those persons
but for the sex of their chosen partner. The ICCPR bans both.

It is
important to observe also that United Nations and other international bodies
have shown respect for evolving, rather than fixed, definitions of the family.
The U.N. Human Rights Committee has noted that "the concept of the family may
differ in some respects from state to state, and even from region to region
within a state, and … it is therefore not possible to give the concept a
standard definition."[592]
The U.N. Committee on the Rights of the Child has also stated:

When
considering the family environment, the Convention [CRC] reflects different
family structures arising from various cultural patterns and emerging family
relationships.[593]

The U.N. Special Rapporteur on
Violence Against Women has observed,

Throughout
the world, there exist divisions between the dominant, normative ideal of the
family and the empirical realities of family forms. Whether the ideal is the
nuclear family or a variation of the joint or extended family, such ideals in
many cases are not wholly consistent with the realities of modern family forms.
These family forms include, in increasingly large numbers, female-headed households
in which women live alone or with their children because of choice (including
sexual and employment choices), widowhood, abandonment, displacement or
militarization.…

Despite
such differences, however, the culturally-specific, ideologically dominant family
form in any given society shapes both the norm and that which is defined as
existing outside of the norm and, hence, classified as deviant. Thus, the
dominant family structure¾whether it is dominant in fact or merely in theory¾serves
as a basis against which relationships are judged. Further, it serves as the
standard against which individual women are judged and, in many cases,
demonized for failing to ascribe to moral and legal dictates with respect to
family and sexuality… Such ideology exposes women to violence both within and
outside the home by enforcing women's dependent status, particularly among poor
and working class women, and by exposing those women who do not fit within or
ascribe to traditional sex roles to gender-based hate crimes… Such demonization
fuels and legitimates violence against women in the form of sexual harassment,
rape, domestic violence, female genital mutilation, forced marriages, honour
killings and other forms of femicide.

The
Special Rapporteur also maintains that state refusal to recognize
non-traditional family forms can deny women (as well as men) within them the
full protection of the law against domestic violence and abuse-and can further
endanger the situation of human rights defenders.

Increasingly
women's human rights defenders are coming under attack for, among other things,
challenging traditional notions of the family. Public denouncements,
accusations, harassment and physical violence are increasingly employed against
women's human rights defenders. Commentators argue that in order to ensure that
women's human rights are protected in both public and private life, the
acceptance of non-traditional family forms is necessary. It is essential to
recognize the potential for and work to prevent violence against women and the
oppression of women within all family forms.[594]

By
denying legal recognition to same-sex partnerships, states further stigma and
foster violence. They deprive a class of people of important economic and
social benefits that heterosexual couples can obtain and share. They also deny
to that class crucial legal protections.

B. Detailed Recommendations

Human Rights Watch and the International Gay and Lesbian
Human Rights Commission (IGLRHC) call on all political leaders in the region:

To refrain from statements that incite division, hatred,
violence, and discrimination based on sexual orientation or gender
expression or identity.

Human Rights Watch and IGLHRC also call on the
governments of Botswana, Namibia, Zambia, and Zimbabwe:

Namibia should remove sections of the "Combatting of
Immoral Practices Act," 1980, which refer to sexual relations between
people not united in a civil or customary marriage as "unlawful carnal
intercourse";

Botswana should repeal Sections 164, 165, and 167 of its
Penal Code;

Zambia should repeal Sections 155, 156, and 158 of its
Penal Code.[595]

Zimbabwe should also modify or repeal Sections 15-18 of
its 2001 Sexual Offences Act that radically increase penalties for
"sexual offences" committed by an HIV-positive person, whether or not
aware of his serostatus; that list "sodomy" as a "sexual offence"; and
that deny accused persons the right to consent before, and
confidentiality after, HIV testing.[596]

·To modify or repeal all vague laws that restrict public conduct
on moral or other grounds without specifiying the behaviors barred. These
include relevant provisions in Sections 172 and 178 of Zambia's Penal Code;
Zimbabwe's Miscellaneous Offences Act of 1964; and any similar provisions in
other states.[597]

·To repeal laws giving governments power to restrict the
internationally recognized right to freedom of expression, including Sections
54 and 55 of Zambia's Penal Code; Zimbabwe's Censorship and Entertainments
Control Act of 1967; and any similar provisions in other states.

To end police abuse and surveillance of people and groups
based on their sexual orientation or gender identity or expression.
Investigations should be launched into allegations of police brutality,
extortion, and torture; those found responsible should be held
accountable. Police and other officials in the criminal justice system
should be trained in sensitivity to minorities and to human rights
protections, including protections based on sexual orientation.

To end discrimination in the provision of health care, and
to ensure that gay, lesbian, bisexual, and transgender people as well as
all other vulnerable groups have access to relevant and appropriate
information on health, including information on sexual health and
HIV/AIDS.

To enact laws protecting against discrimination on the
basis of sexual orientation or gender identity or expression.

In future processes of constitutional revision, to include
provisions that:

Affirm or strengthen the right to privacy;

Strengthen anti-discrimination protections, and include
sexual orientation and gender identity or expression in their scope;

Eliminate any exemption from equality protections for
customary laws or traditional practices.

To open the status of marriage and all the rights and
benefits it entails to same-sex couples; and to ensure that legal rights
and protections are available to partners in same-sex relationships as in
all relationships, whether married or not.

Human Rights Watch and IGLHRC call on the government of
South Africa:

To enact legislation opening the
status of marriage and all the rights and benefits it entails to same-sex
couples; and to ensure that basic legal rights and protections, including
protections against domestic violence, are available to partners in
same-sex relationships as in all relationships, whether married or not.

To pass a revision of the Sexual
Offences Act that equalizes the age of consent for homosexual and
heterosexual sexual relations, and defines the crime of rape in such a way
that the rape of men by men, or of women by women, is included in the
definition and subject to equal punishment.

To enact measures that would allow
post-operative, as well as certain categories of pre-operative,
transgender persons legally to change their identity papers to correspond
to their preferred gender.

To create or empower mechanisms to
investigate violations of, and determine how state and private agents
should enforce and uphold, the sexual-orientation protections of the
Equality Clause of the constitution. These measures may include:

Ensuring that existing Commissions
responding to human rights violations (including the Human Rights
Commission and the Commission on Gender Equality) assign to at least one
commissioner specific responsibility for sexuality issues, with staff
delegated to assist, engage in outreach and publicity, and engage in
litigation or mediation where necessary;

Ensuring that existing mechanisms for
enforcing protections in the Equality Act¾including
its protections against private-sphere discrimination¾are clearly mandated to focus on
issues of sexuality and sexual orientation as well as race, gender, and
disability;

Ensuring that officers in the Office
of the President, and officers in each department, are mandated to
monitor the impact of existing and proposed laws and policies on the
Equality Clause protection of sexual orientation;

Ensuring that issues of sexual
orientation and gender identity be standing agenda items for
consideration in debates by all Parliamentary Portfolio Committees,
including those addressing health, welfare, justice, police, and prisons;

Creating new mechanisms for
responding to issues of sexuality as necessary.

To develop and implement a state
public education campaign promoting understanding of the rights of
lesbian, gay, bisexual, and transgender people, in the context of human
rights and constitutional protections in general. Civil society,
particularly lesbian, gay, bisexual, and transgender groups and NGOs,
should be consulted at all stages in the process. This should include:

Developing, again in cooperation with
civil society actors, educational and training materials promoting
understanding of the rights of lesbian, gay, bisexual, and transgender
people. Such materials should be developed for use at all levels-in
families, in schools, in communities, and in training state employees,
including officials in the criminal justice and health care sectors.

Developing, again in cooperation with
civil society actors, educational and outreach materials specifically
targeted at lesbian, gay, bisexual, and transgender populations--as well as men who have sex with men
and women who have sex with women, but who may not identify themselves in
the above terms. These materials should explain both their rights and
their recourses under the constitution and existing law.

Ensuring that libraries, the state
media, and other state institutions for disseminating information have,
and distribute, information on sexual orientation, gender identity, and
their constitutionally protected status.

Ensuring that key state personnel¾including police, magistrates,
prosecutors, judges, and health care professionals¾are trained in lesbian, gay, bisexual, and transgender
issues, at the initiative and expense of the state.

Mandating key state institutions,
including the criminal justice and health care sectors, to engage in
outreach to lesbian, gay, bisexual, and transgender groups and NGOs, at
local as well as national levels, in order to explore barriers to working
together, and ways to overcome them.

To offer funding and support to civil
society actors on a non-discriminatory basis, supporting both their
service provision and their advocacy work-including NGOs and groups that
may advocate against government policy.

To ensure that legal education in
state institutions includes full treatment of the growing body of sexual
orientation law.

To take measures giving incentives to
attorneys to engage in pro bono legal work, particularly representing
indigent clients or assisting NGOs who do.

To ensure that the right to asylum
from persecution based on sexual orientation and gender identity is
respected by South Africa's immigration authorities.

To develop protocols for the
protection of vulnerable prisoners¾including
lesbian, gay, bisexual, and transgender prisoners-in all places of
detention. These protocols should ensure the prisoners' safety in the
context of the specific needs of each group, and should do so without
imposing punitive measures or social isolation.

To speak out against all forms
of persecution and abuse in other countries, and defend the international
relevance of the values in South Africa's Constitution and its Equality
Clause.

Human Rights Watch and IGLHRC call on all NGOs in the
region as well as internationally, and particularly human rights organizations
and movements:

To speak out whenever state officials
incite or practice discrimination or abuse.

To seek out marginalized and
stigmatized groups, and work to bring their concerns into the mainstream
of human rights and other social movements.

C. Postscript: Heather's Story

We spoke to Heather, thirty-one years
old, born and raised in Harare, in the garden outside GALZ's offices on a
bright day in August 2000-the morning after she told her husband she was a
lesbian.

She was more confident of her
future than many women and men interviewed for this report. Her story grew
from an urban, middle-class world not typical of Zimbabwe: one where
spaces-from streets to shops to schools-were at least tenuously available for
women to be independent, in the at least temporary absence of men.
Possibilities open to her were closed to others. Yet it also reflected
something both more intimate and more generally human: the exhilaration of
first freedom, a sudden, fragile but invigorating sense of personal power.

Heather told us:

So here I am, today. I feel as
if I have no problems in the world. Actually, though, I do. The world is my
problem, you might say.

My problem is that from my
teenagehood, from age twelve or thirteen, I always felt attracted to other
girls. If I would go in a changing room, whenever I saw another female naked,
I would feel turned on. And then I would start fantasizing about holding that
person. But you see, according to our African tradition, when you finish
school you must get married and so on. So I got married. I had three sons.

But my relations with my husband
were so difficult that, from the beginning of last year, I have not been
sleeping with him. Each time he released his semen, I felt like vomiting. I
had to shut my eyes and pretend that I was with another woman.

So I finally told him I had no
feelings for him. It was hurting me to have sex with him. I told him I had to
use petroleum jelly and facilitate it, because I had no feelings.

He started believing I had
spirits in me, and maybe the spirit I had in me was male. And that spirit did
not want me to have sex with another man. He never thought it had anything to
do with my having sexual desires for women, with my lesbianship. He wanted me
to go to the rural areas, he would give me over to my father, and do what must
be done: kill a beast, appease the spirit, drink African beer.

Well, I didn't want that. I
opened the phone directory, found GALZ, and called. Poliyana [Mangwiro] gave
me directions, and I came over.

I went to a party GALZ had. There
were a few women there and they were attracted to me, but I was not attracted
to them. Then came a certain girl, and we were attracted to each other from
her arrival. We have been communicating, but there is a problem. She is
committed to a certain man. I don't want to hush up anything. I want to have
someone with whom I can be me.

It is a bit difficult putting the
message across to my husband. The first day, he followed me here [to the GALZ
Center]. He saw some gay guys about. I had told him this was a branch of Amnesty
International. Well, he knows I am very interested in human rights, he always
says, you should have been a lawyer by profession. I told him I had to come to
see how they do things: human rights, you know, for women who are abused by
their husbands.

Well, he was very slow about it.
He just didn't get what was going on. The girl I was interested in, she even
took me and my husband to her place. He watched me punch her number in my
cellphone. And he still didn't know. He drove me here many times. But he kept
asking, "What do you do there?" I told him I assisted with computers. Then,
at the [2000] Book Fair, I insisted I wanted to go to the GALZ stand. He
didn't want me to go to the Fair: he said, "You want to become a writer or
what?" I went, and I got pamphlets on lesbians and gays, books on people's
feelings, and such. I got home and threw them on his bed. I knew he would go
through each one that evening. And I went in the kitchen and started cooking.

He came to me and said: "What is
this stuff?"

I said: "This is the life certain
people live."

He said: "Why are you so
interested?"

I said: "Why are gay and lesbian
people treated as outsiders?"

He said: "Because what they do is
inhuman. Their practices are a disgrace to God and all men."

I said: "I see nothing wrong with
it. It is difficult to change people's desires." And I said, "How do you
think people get to the stage of deciding they will have a same-sex partner?
When they realize they can't have feelings for the opposite sex."

He said, "Don't you find it
embarrassing?"

I said: "No."

He kept quiet.

Just yesterday I came here and
got more GALZ publications, and left them at home. He said then: "Why are you
really, really interested in this stuff?"

For the first time I confessed. I
told him: "I am part of them."

And finally we talked.

He asked, "Do you have a
girlfriend? Do you sleep around?"

I said, "No, I have one girl I
have a crush on. And we have no sex. She has a man."

He said: "I know you are seeing
somebody. Are you going to continue with this lesbianship?" And he asked me
how long I had had it in me.

I told him about everything,
about my teenage fantasies. Well, I was afraid he might grow violent. But he
did not. But he said I must not tell the kids.

This morning I put on a GALZ
T-shirt. I had got it yesterday. He got angry: he said, "It is bad for the
public as a whole." He said, "People will assault you, shout at you."

And I said, "If it is an offence,
I'll appear before a court of law. I want to know if human rights exist in
this country."

He wouldn't take me to the
Center, so I had to use public transport. I wore the T-shirt and carried my
jacket in my hands. People stared at me, some in interest, some with that kind
of eye which says, "At least you've got the guts."

And I felt proud.

My husband doesn't want a
divorce. He doesn't want his relatives and friends to know. He has a
girlfriend. So he lets me go without sex.

I think I could support myself
without my husband. I have been working for [a Harare NGO] part-time for
years. But I need to get a job which is not just working for money, but one
which will satisfy my inner soul at the end of the day.

A lot of people are gay or
lesbian and are shy to come out of their shells. If Magistrate's Court could
reveal how many marriages end after one or two years because of "sexual
differences"! People marry to please their parents, but they are gay and have
to pretend all their lives. If I had five of those T-shirts I would put them
on from Monday to Friday. I just feel that I should be free.

I have the wish that all African
women can stop pretending and being afraid. They should be adults, not afraid
of their extended families, their mothers and fathers, or their husbands.

I wish I could go to the rural
areas trying to make people realize who they are. I wish I could let them know
they are not the only ones, and it is not just an "unnatural offence." In law,
maybe, but not in reality.

We don't encourage women to break
their marriages. But we should encourage them to discover who they are and make
their choices. Before she dies she should find out, and live a few years as
herself.

Appendix

Before the law: Criminalizing sexual conduct in
colonial and post-colonial southern African societies

By Scott Long

There is no reason to suppose that
white colonists brought same-sex sexual behavior to Africa for the first time.
What they did bring, though, was the criminal categorization of that behavior.
The acts were indigenous. The name and crime were imported.

The paradox is crucial: the laws
that some politicians now defend as bulwarks of independence and authenticity
are themselves colonial impositions. The law that criminalizes homosexual
conduct in Zambia or Botswana is not a local phenomenon. It has its exact
counterpart in similar laws in other former (and present) British colonies,
including India and the English-speaking Caribbean; and all derive from
metropolitan models enacted in Victorian times. Moreover, these laws are
deeply rooted in European Christian culture, in particular in a medieval,
theological fear of non-procreative sex, which sought to ban acts anathematized
with Biblical sweep and imprecision. The presence of these provisions in
Africa is a historical accident-or, more exactly, the product of a historical
injustice: colonial rule.

None of the laws in Africa that
criminalize consensual, adult same-sex relations actually mention
"homosexuality." (The term "homosexual" itself was invented in Europe in 1869,
by a medical doctor, and took a long time to move from medical to legal
discourse.) Indeed, what is most striking about all those laws is their
vagueness-referring as they do to "unnatural offenses," or "carnal knowledge
against the order of nature," or "gross indecency." Their history is mostly
one of legal, political, and social attempts to fill in those vacuous, umbrella
terms with specific acts-with a content constantly shifting, according to alterable
understandings of what "nature," or social mores, would actually allow.

Laws criminalizing so broad and
ill-specified a range of behaviors are clearly not ones that allow individuals
to say with certainty whether a particular act is permitted. Two U.S. legal
authorities have written, of sex laws in that country, that "When law tracks
the moral beliefs held by all or at least the vast majority of the members of a
society, as is true of the laws prohibiting murder and theft, people do not
have to 'know' the law in order to comply with it; they have only to follow
their conscience. Given the diversity of moral opinion regarding sex in the
United States, conscience is not a sure guide to legality any more."[599]

If one changes "opinion" to
"behavior," the statement might hold true of most societies across the world
and across history. No society, however monolithic, can impose uniformity in
sexual practice, much less desire. Nor is the law likely even to be cognizant
of the diversity of practices and desires its subjects experience, so shrouded
are many of them likely to be in stigma, secrecy, and silence. A sweeping
prohibition of "crimes against nature" serves not only a punitive but a
preceptive purpose. Its function is less to specify despised acts than to
outline a positive vision of sex as employed in the service of procreation. Yet
in so doing it abandons the regulative garment of law in order to wear a
prophetic mantle, and exhort in the name of its own particular Utopia.

This Appendix will examine the
history of criminal penalties for same-sex behavior in colonial, and
post-colonial, southern African societies. It will show two legal systems
intersecting, each with its own religious animus toward such behavior-and each
with its own terminology. From the south came Roman-Dutch common law, the law
brought by settlers from the Netherlands: a version of codified Roman law,
interpreted by Renaissance classicists in the Low Countries, who read it in the
light of Germanic common law. This legal tradition spoke of "sodomy." From
the north came English common law and British penal codes, with a history of
criminalizing "buggery" and "gross indecency." The two legal systems met
somewhere along the Zambezi and entered into a confusing interrelationship,
which generated the multiple meanings of sexual offenses in all these countries
today.

It is important, however, to
remember that colonial law is not a self-contained system to be studied in the
abstract. It did not arise from the undisturbed development of a political and
social order; rather, it was a prop for disruption and invasion. It
represented a set of foreign principles of justice imported into a new, deeply
unjust situation, and recruited to maintain it.

Colonial law functioned
differently according to who its subjects were. For whites, it served to
regulate their own community; for the larger society, it served to
differentiate peoples so that no "community" could possibly exist. For whites,
it was an affirmation of their own "civilizing" mission; for others under its
sway, it was an instrument of separation, stigmatization, and control.

In looking at sex laws in such
segmented and striated societies, therefore, one must remember their different
effects on different populations-as well as their role in supporting not only
moral beliefs but the concrete workings of the colonial system. Particularly
in South Africa, apartheid employed sexual puritanism, and the regulation of
sexual behavior, to maintain segregation and to justify surveillance. But
throughout the region, these laws operated in conjunction with other legal
provisions that made it possible to marginalize and control stigmatized groups,
and gave the state immense power over social life. Most of these provisions
remain in effect, long after colonialism proper has passed away.

Finally, the law that whites
wrote was itself segregated. Colonial law oversaw the creation of another
system that both supplemented it and confirmed its primacy: white rulers also
codified "native" or "customary law" that would govern the daily lives of much
of the population. In so doing, they rewrote those customary rules, either in
their own images or in the image of what they believed the "native" should be.

This Appendix will therefore
examine the changing definitions of forbidden sexuality in the laws the
Europeans brought to Africa. It will then look at other laws surviving from
the colonial period that furnish states with means to persecute or discriminate
against sexually stigmatized groups. Finally, it will suggest how the
codification of customary law may have changed the place of sexuality in
African societies-as well as the understanding of "custom" itself.

A. Criminalizing Homosexual Conduct

1. Sodomy and Roman-Dutch law

Roman-Dutch common law was an
interpretation of Roman law codes in the light of Dutch and Germanic practice,
as synthesized by humanist scholars in the Low Countries in the Renaissance.
This hybrid was brought to the Cape of Good Hope by settlers from the
Netherlands in 1652.[600]
As long as the colony was under Dutch rule, its legal system continued to
follow the evolution of the law in the colonists' home country.[601]
During the Napoleonic wars, the colony was occupied by Great Britain, and in
1806 it was formally annexed to the British Empire. Rather than impose English
common law, however, the new occupiers decided for convenience's sake to
preserve the existing Roman-Dutch system.

Roman-Dutch law thus was carried
by whites from the Cape Colony over the rest of what became South
Africa-brought by the Afrikaner Voortrekkers to the new domains they
established beyond the Orange River, and by the British to the lands they
extorted or annexed from their native inhabitants. It was taken to what became
Zimbabwe when that territory (as the colony of Southern Rhodesia) was occupied
by Cecil Rhodes' British South Africa Company. It spread to what is now
Namibia when, after the First World War, the former German colony of South West
Africa was "mandated" to South Africa's repressive care by the League of
Nations. It also became the common law of the British colony of Bechuanaland,
which after independence became Botswana.

Early Roman-Dutch law contained
an offense, or a complex of offenses, variously termed sodomie, onkuisheid tegen
de natuur (lewdness against nature) or, in Latin, venus monstrosa. The
word sodomie came to supersume or include the other two: it was,
however, broadly defined. As a 1987 Zimbabwean High Court decision declared,
reflecting on the development of the term:

… the word used in early
Roman-Dutch law was "sodomy" and this term, at that time, encompassed virtually
any form of aberrant sexual behaviour. The crimes now known as sodomy and
bestiality were included under this term, and some authorities also included
acts such as self-masturbation, oral intercourse, lesbianism, and many other
such practices. Some jurists even regarded normal coitus between a Jew and
Christian as "sodomy."[602]

A selection of early definitions
from Dutch legal scholars displays both the breadth and the bloodthirstiness of
early European law. Joost Damhouder (1507-81) divided sodomy into three
categories-self-masturbation, unnatural sexual acts between two humans, and
bestiality-and stated, "When someone has committed sodomy with other people,
whether with his own or opposite sex, the same are usually capitally
punished with fire."[603]
Matthaeus (1601-1654) wrote, "Venus monstrosa occurs whenever it
perverts a man or a woman. Of this type are sodomites, catamites, tribadists
[women having sex with women], masturbators, practitioners of fellatio, those
who submit to fellatio, and whoever exercises vile desire with beasts. All
these are to receive the highest penalty since they have transgressed the
boundaries of nature and in this way cheat the future of mankind."[604]
Carpzovius (1595-1666) wrote that "He who wastes the sexual act when copulating
with men against nature, having abandoned the use of nature, has his head cut
off… for example, when a man makes love to a woman in the wrong way,
deliberately not inserting his member into her organ or not doing it in the
correct manner."[605]
Some defintions were narrower. U. Huber (1636-94), a Frisian judge,
maintained that only bestiality and unnatural intercourse between human beings
(not masturbation) were punishable; Simon van Leeuwen (1626-82) further
excluded unnatural acts between females, or between males and females-leaving
only male-male acts and bestiality as criminal offenses.[606]
These shifts reflected not an increasing precision in jurisprudence but
continuing contests over an elastic terrain of known and unknown, described and
unmentionable, sexual acts. Two things, though, are clear:

The common law responded to a belief rooted in Christian
theology: that sexual acts were only permissible when aimed at
childbearing. As South African jurist Edwin Cameron writes, in
Roman-Dutch law "only male/female sexual acts that were directed to
procreation were permitted. All other sexual acts … were cruelly
punished."[607]

The very stigma attached to these acts prevented an
effective definition. A Dutch jurist stated in 1806 that "the turpitude
of this unspeakable crime is so great that it ought, it seems, to be
passed over in silence rather than to be expounded to the ears of the
chaste, and hence many commentators on the criminal law too have merely
touched on it with very few words."[608]

Both the profound moral value
attached to the legal promotion of procreation, and the vagueness bred by
silence, would remain consistent factors in the strange career of "sodomy" in
southern Africa.

England's annexation of the Cape
of Good Hope had peculiar consequences for the common law: it preserved the
system, but ensured that it would develop independently of whatever happened in
its homeland. Ironically, three years afterward, the Netherlands-now part of
the French Empire-saw the introduction of the Napoleonic Code, which abolished
Roman-Dutch law altogether and decriminalized all same-sex sexual acts. This
repeal had no impact at the Cape. The British conquest ensured that a lopped
and frozen form of Roman-Dutch law, and the crime of "sodomy," remained in
place at the tip of Africa. Dead at the root, a graft of the medieval law
survived in its remote colonial branches.

2. South Africa

As late as 1907, a four-volume
guide to South African common law noted that "Sodomy and bestiality are
punishable with death … although a lesser punishment may be inflicted at the
discretion of the court," adding however that in South Africa "it has been the
constant practice of our courts to punish the offense otherwise than
capitally."[609]
(The last known execution for sodomy appears to have been in the Cape Province
in 1831.)[610]
As late as 1997, a one-year suspended prison sentence was imposed in a case in
Western Cape Province.

This 1907 text divided sodomy
into "two species," one being bestiality, the other "where one man has carnal
intercourse with another man or with a boy," noting, however, that
"Masturbation… is also a crime equally with sodomy and bestiality."

With time, the original general
crime of "sodomy" gradually became differentiated in South African common law
into three separate offenses. Bestiality took its independent place. It was
"usual," said an early twentieth-century legal text, "to require proof of penetration"
in sodomy cases[611]
(although both the active and passive partners were guilty of the same crime),
and a 1926 decision indicated that to charge a man with sodomy without evidence
of penetration "might have been misleading."[612]
These detailed divisions of sexual behaviors took some time to be established
in the common law. By mid-century, though, a standard definition of sodomy
could be said to exist, which required penetration, did not require seminal
emission, and identified both the active and passive partners as criminal
practitioners: "Sodomy consists in unlawful and intentional sexual relations per
anum between two human males."[613]

The ultimate definition of sodomy
left over what one legal scholar called "a residual group of proscribed
'unnatural sexual acts' referred to generally as 'an unnatural offence.'"[614]
"Unnatural offenses" were still difficult to define: at a minimum, though, they
included those sexual acts between men that did not involve anal penetration.
In 1967, two men could still be convicted of "unnatural offenses" for mutual
masturbation. As will be shown below, these divisions in the original corpus
of crimes constituting "sodomy" showed the influence of British occupation.
English law by now saw anal sex between men as one crime, and other forms of
homosexual sex-"gross indecency"-as another. This categorization had come to
inflect Roman-Dutch common law as well.[615]

A still profounder influence on
the place of sexuality in society was the apartheid regime. Regulating sex was
basic to its power. From the beginning, the National Party campaigned against
interracial sex-the very existence of a mixed-race population problematized its
project of comprehensive racial categorization. Yet beyond that, the
architects of apartheid aimed to create an all-white, all-Christian public
sphere in which racial and moral purity would be forcibly conjoined. Thus the
Sexual Offences Act of 1957 criminalized interracial sex-but, in the same
terms, barred prostitution, solicitation for immoral purposes, and a range of
other activities that brought "immorality" into the public gaze.

Finally, moral panics were a tool
for the regime to reinforce its position. Kevan Botha and Edwin Cameron have
written that "During the apartheid era, key moments of political crisis have
coincided with incidents of repression against non-conformist sexuality."[616]
Homosexuality soon entered the roster of the regime's public demons. In
January 1966, a police raid on a house in the northern suburbs of Johannesburg
found

a party in progress, the likes of
which has never been seen in the Republic of South Africa. There were
approximately 300 male persons present who were all obviously homosexuals …
Males were dancing with males to the strains of music, kissing and cuddling each
other in the most vulgar fashion imaginable. They also paired off and
continued their love-making in the garden of the residence and in motor cars in
the streets, engaging in the most indecent acts imaginable with each other.[617]

The ensuing scandal led to an
extended panic over the threat homosexuality posed to the society. The central
office of the South African police sent a circular throughout the country
instructing officers to use informers to infiltrate homosexual gatherings. The
minister of justice told Parliament,

History has given us a clear
warning, and we should not allow ourselves to be deceived into thinking that we
may casually dispose of this viper in our midst by regarding it as innocent
fun. It is a proven fact that sooner or later homosexual instincts make their
effects felt on a community if they are permitted to run riot … Therefore we
should be on the alert and do what there is to do lest we be saddled later with
a problem which will be the utter ruin of our spiritual and moral fibre.[618]

A Parliamentary Select Committee
was formed to recommend new legislation. Their report predictably saw
homosexuality as a problem for, and within, the white community-non-whites
appeared only in the context of possible interracial relationships. The
overriding concern of the report was that homosexuality was moving out of the
private into the public sphere. With the declared aim to "stamp out homosexual
gatherings," Parliament amended the Sexual Offences Act to punish "A male
person who commits with another male person at a party any act which is
calculated to stimulate sexual passion or to give sexual gratification,"
defining a party as "any occasion where more than two persons are present"
(emphasis added). While the racial provisions of the Sexual Offences Act were
repealed in 1985, this amendment survived. One historian writes:

The immediate consequences of the
legislation have never been fully documented, but there is evidence of a
clampdown on outdoor cruising places and routine police surveillance of clubs,
bars, and parties during the 1970s. So as to remind gay people of the law,
police would also conduct random raids, bursting into a party or club, grabbing
people who were kissing or dancing together, and bundling them into police vans.
Photographers would line people up against the wall and snap pictures of as
many faces as possible while cops took down the numbers of the cars parked
outside… Exposure could have meant unemployment, social isolation and vitriolic
abuse wherever one went.[619]

In 1977, the Criminal Procedure
Act listed sodomy as a Schedule 1 offense, giving police broad powers to
investigate cases and make arrests even without warrants; allowing the state to
intercept letters and other private communications in sodomy investigations;
and disqualifying people convicted of sodomy-or their dependants-from receiving
pensions. A 1987 parliamentary report on youth defined homosexuality as an
"acquired behavioural pattern," a "serious social deviation," and an "evil."

The unravelling of the legal and
social stigma attached to "sodomy" did not begin until the final passage of the
1996 constitution, with its express inclusion of sexual orientation as a status
protected from discrimination. Two years later, the Constitutional Court held
that the criminalization of sodomy, as well as Section 20 (A) of the Sexual
Offences Act, violated the Equality Clause of the constitution, as well as its
protections for privacy and human dignity.

3. Namibia

In 1920, the League of Nations
gave the former German colony of South West Africa to South Africa as a mandate
territory. After the Second World War, the mandate became one of the most
disputed issues in international law: South Africa attempted to incorporate the
territory as its fifth province, while both the United Nations and the
International Court of Justice at the Hague refused to recognize its continuing
occupation. A long war of liberation resulted in the territory's independence
as Namibia in 1990.

The South Africans brought Roman-Dutch
law into the territory, and after independence it remained the common law of
Namibia. Thus the common-law offense of sodomy, and the related crime of
"unnatural offenses," remain criminalized in Namibia. The Namibian
constitution, unlike the South African, does not offer express protection
against discrimination based on sexual orientation¾and these laws remain in full force.[620]

However, other apartheid-era
legislation directed at homosexual conduct did not apply in Namibia, owing to
its formal administrative differentiation from South Africa. South West
Africa's puppet legislature did enact a "Combating of Immoral Practices Act"
(Act No. 21 of 1980). The act is mainly aimed at heterosexual conduct;
however, it defines sexual intercourse between two people who are not partners
in a civil or customary marriage as "unlawful carnal intercourse." The
constitutionality of the Act is now being challenged in court.

4. Zimbabwe

The lands north of the Limpopo
River were colonized in the late 1880s by Cecil Rhodes' British South Africa
Company (BSAC), based in Cape Town. Although an agent of the British imperial
enterprise, the Company operated under Cape law. The settler government Rhodes
inaugurated was dismantled in 1980, but the law he brought remains in force:
Section 89 of Zimbabwe's constitution declares that (aside from provision for
"African customary law") the law of the country is "the law in force in the
colony of the Cape of Good Hope" in 1891-that is, Roman-Dutch common law.

In fact, this solution leaves
Zimbabwe's common law in confused condition. There was no codification of Cape
law as it stood in 1891; the absence of an ur-text for the law has left judges
free to identify common law as they see fit, drawing freely on English
principles and South African precedents. One expert observes that Zimbabwe's
common law is "English-trained judges applying English common law through a
South African lens and calling it Roman-Dutch."[621]
It also means that the Zimbabwean common law is free to develop, through
precedent, in different directions from its South African source.

A standard Zimbabwean criminal
law manual defines sodomy, in terms clearly derived from South African legal
texts, as "unlawful sexual relations per anum between two human males," going
on to specify that penetration is necessary but "emission of semen by the
active party" is not.[622]
A 1987 Zimbabwean High Court decision, dealing with an appeal on a case of
bestiality, divides up "unnatural offenses" in a way derived from South African
examples:

There are three categories of
offences involving sexual acts contrary to the order of nature: sodomy,
bestiality and a third category into which fall certain residual sexually
abnormal acts classified generally as unnatural offenses. It is not possible
to define with precision what types of sexually deviant acts constitute an
unnatural offense, although the nature and number of such acts are more limited
than they were. It is an open question whether sexual offenses between females
constitute unnatural offenses. [623]

Certain technical differences
from the South African law of sodomy are also clear, however. The decision
leaves open the possibility that lesbian sexual acts might be punished as
"unnatural offenses" in Zimbabwe, a possibility apparently foreclosed in South
African common law.[624]
The criminal law manual, moreover, also posits that male-male sex without
penetration might still be punished as "attempted sodomy."[625]

Law in white-ruled Rhodesia had
been somewhat slower than South African law to narrow the definition of
sodomy. Only in 1950 did a court hold that sodomy should be confined to cases
"in which the accused gained actual physical gratification," as opposed to
casual or accidental (non-penetrative and non-sexual) touching.[626]
Only in 1968 did a High Court ruling definitely find that consensual anal sex
between men and women was no longer a crime, thus narrowing the definition of
sodomy to sex between men.[627]
In 1975, for the first time, a High Court ruling followed South African
precedent in dividing "unnatural offences" into three classes: "sodomy,"
"bestiality," and "a residual group of proscribed 'unnatural' sexual acts
referred to generally as 'an unnatural offence.'" The court left it ambiguous
whether mutual masturbation between two males fell into the latter
category-although the judge stated that it "cannot be compared with the disgust
and abhorrence which other forms of conduct such as sodomy arouse."[628]

It was never exactly clear, then,
where Zimbabwe drew the difference between "sodomy" and an "unnatural
offence." The hesitancy likely reveals the difficult struggle of a small, rural
settler society-still more reticent about sexuality than was comparatively
urban South Africa-to adjust an antiquated legal language.

The condition of record-keeping
in Zimbabwean (and, previously, in Rhodesian) courts makes a full historical
accounting of sodomy convictions almost impossible. Sodomy cases are heard in
local, magistrate's courts, the proceedings of which are not published but kept
at the courts of origin, or in regional archives. Only cases that are appealed
reach the High Court; and only those High or Supreme Court cases that are
regarded as legally significant, or precedent-setting, are published in the
Zimbabwe Law Reports.[629]

Nonetheless, research in
magistrates' courts records from the first three decades of white rule has
shown that, of approximately 250 cases of sodomy or "unnatural offenses"
(however defined) between 1892 and 1923, only twenty-two involved white men.[630]
By contrast, since 1980-though these two sets of figures cannot be taken as
comparable- the only four sodomy cases involving consensual, adult sex that
reached higher courts, and that have been recorded in law reports, all involved
white men.[631]
A number of factors underlie this disparity-one of them being that whites are
still far more likely to be able to afford legal representation and to
undertake the appeal that might end in their case being recorded. There is no
reason to think a disproportionate number of those who engage in "sodomy" in
Zimbabwe, or of those who suffer the legal consequences, are white.

However, there is also reason to
suppose that police and courts in the waning years of colonalism, and in the
period of unilaterally-independent white rule (UDI, 1965-80), may have turned
the law increasingly against fellow whites. Settler rule had a vested interest
in subjecting whites' sexuality to inspection and regulation. Whites'
identities as bearers of the "civilizing mission" depended on their adherence
to moral codes; whereas "native" sexualities, much as in South Africa, were
seen as either irrelevant or so irregular as to be beyond the pale.[632]
Yet if it is true that arrests for sodomy under white rule grew to target
whites especially closely, that may have contributed to a popular impression
that sodomy was the "white man's disease." A white regime desperate to ensure
that no white man could engage in "perversion" lent ammunition to
post-independence politicians eager to prove that only a white man would.

There is also reason to believe
that sentences for sodomy have gradually decreased. S v Roffey, the
last case to reach the Zimbabwean Law Reports, saw a Z$300 fine levied. [633]
One attorney believes that a fine of Z$300-500 is now a standard sentence for
sodomy in magistrate's courts.[634]

However, magistrate's courts have
discretion to impose sentences of up to seven years' imprisonment, and
sentences of up to six months are not subject to automatic review by higher
courts. Other authorities believe that sentences of at least several months'
imprisonment almost certainly occur.[635]
Moreover, as discussed below, a new "Sexual Offences Act" in Zimbabwe makes an
HIV-positive man committing sodomy liable to a draconian sentence.

5. "Buggery" and British law
in Botswana and Zambia

A complex of criminal
classifications deriving from "sodomy" entered Africa from the south, with
Roman-Dutch law. A different complex of sexual offenses came from the north,
deriving more or less from the English common law offense of "buggery."

"Buggery"[636]
in English law was a term almost as flexible as "sodomy" to the south, but
generally referred either to bestiality or to anal sex between men. It had
been made a capital crime in the fifteenth century, and remained so until 1861,
when Parliament reduced the sentence to imprisonment for ten years to life.

In 1885, the British House of
Commons debated a bill to raise the age of consent for heterosexual intercourse
from 13 to 16. One MP, Henry Labouchere, successfully proposed an amendment to
punish "Any male person who, in public or in private, commits, or is a party to
the commission of, or procures, or attempts to procure the commission by any
male person, of any act of gross indecency." The sentence was up to two years
in prison. (Under this law, known as the Labouchere Amendment, Oscar Wilde was
convicted in 1896.) Labouchere's law completed the criminalization of all
male-male consensual sexual contact in Great Britain: common-law "buggery"
covered anal sex, and "gross indecency" embraced the rest.

It was this distinction that
infiltrated its way into Roman-Dutch interpretations in South Africa, as a line
between penetrative "sodomy" and other "unnatural offenses." Under somewhat
different terms (with the less vehement "carnal knowledge against the order of
nature" substituting for "buggery") it was carried directly into the penal
codes of future Botswana and Zambia.

British Bechuanaland (the future
Botswana), as a colony settled by the BSAC from the Cape, received Roman-Dutch
common law. Northern Rhodesia (the future Zambia) when it passed from BSAC
administration to direct British Government rule in 1911, adopted English
common law. Both colonies, however, received colonial penal codes-and these
superseded the common law for criminal offenses.

Both codes contain almost exactly
the same provisions-penalizing, on the one hand, a complex of offenses deriving
from buggery; and, on the other hand, the same "gross indecency" that was the
undoing of Oscar Wilde.

Northern Rhodesia's white rulers
adopted its Penal Code in 1930; new provisions on sexual offenses, Section
155-58, were added by Act in 1933.[637]
All passed seamlessly into the Penal Code of independent Zambia in the 1960s,
and remain in force. Section 155 reads:

Any person who-

a) has carnal knowledge of any
person against the order of nature; or

b) has carnal knowledge of an
animal; or

c) permits a male person to have
carnal knowledge of him or her against the order of nature;

is guilty of a felony and is
liable to imprisonment for fourteen years.

Attempt at these offenses is
criminalized in Section 156, and is punished with seven years' imprisonment.
Section 158 reads-in language borrowed almost exactly from the Labouchere
Amendment:

Any male person who, whether in
public or private, commits any act of gross indecency with another person, or
procures another male person to commit any act of gross indecency with him, or
attempts to procure the commission of any such act by any male person with himself
or with another male person, whether in public or private, is guilty of a
felony and is liable to imprisonment for five years.

Botswana's Penal Code is
similarly a colonial inheritance, and its sexual offenses provisions are almost
identical, though the penalties entailed are somewhat lighter. Section 164
reads:

Any person who-

a) has carnal knowledge of any
person against the order of nature; or

b) has carnal knowledge of an
animal; or

c) permits any other person to
have carnal knowledge of him or her against the order of nature;

is guilty of an offence and is
liable to imprisonment for a term not exceeding seven years.

Attempt is criminalized in
Section 165, with five years' imprisonment. Section 167 reads:

Any person who, whether in public
or private, commits any act of gross indecency with another person, or procures
another person to commit any act of gross indecency with him or her, or
attempts to procure the commission of any such act by any person with himself
or herself, with another person whether in public or private, is guilty of an
offence.

In contemporary Zambia and
Botswana, the vagueness of these provisions remains a serious concern. Colonel
C. Musemba, Superintendent of Crime of the Zambian National Police, told our
researcher in 2000 that "there is no doubt that these so-called gays and
lesbians are the people at issue in this law [Section 155]"-although in fact
paragraph c) of the law seems directed at heterosexual sodomy as well.[638]
And Gideon Duma Boko, a lecturer in law at the University of Botswana, argues
that the breadth of the Botswanan provisions violates the fair-trial
protections of the constitution: "The Penal Code does not provide any
definition of 'order of nature'… The sections are extremely vague and
embarassing in law. The conduct they seek to proscribe is so unclearly
defined, if at all, that the ordinary citizen and society must keep guessing at
their meaning and differ as to their application."[639]
(Indeed, the U.K. itself, through the Sexual Offences Act of 1956, long ago
replaced the term "carnal knowledge" with "sexual intercourse" in the interests
of precision.)

What is clear is that, in
Botswana, the language and interpretation of the law have both shifted.
Section 164 and 167 were changed in the Penal Code Amendment Act of 1998.
Whereas both had originally penalized acts committed by "male persons," this
was replaced by gender-neutral language-ostensibly as part of a comprehensive
program to eliminate gender-discriminatory terms from Botswana's legislation.
As a result, for the first time sexual acts between women are clearly
criminalized in Botswanan law.

This doubtful triumph for women's
equality was in fact designed to preserve the legal inequality of lesbians and
gays, Gideon Duma Boko argued. At the time we interviewed him (as explained
in Chapter III.C above), a case of two persons arrested under these provisions
was being heard in court, and was expected to lead to a constitutional
challenge to the laws. Boko explained,

One of the arguments that the
attorney who originally handled the case raised was the very fact that the
provisions were gender discriminatory. At that moment, carnal knowledge-if
that's the way you want to put it-between females would not have been an
offense: it was the male sexual union that would have passed as an offense
under the provisions. So he raised the discrimination argument in that
context, that this discriminates: as between females it is permissible, as
between males it is not, and that is in violation of the constitution in light
of the Unity Dow case [a landmark gender-discrimination case in Botswana] and
subsequent to the cases that followed hers. When we did argue the case this
year, that argument was obviously not available to us because now the
provisions had been made gender neutral.[640]

The change in the Penal Code,
Boko says, "was conscious." He also argues that an accompanying shift has
expanded the understanding of "carnal knowledge" in the Penal Code:

The definition now of carnal
knowledge has been broadened to include any sort of penetration of any
orifice. It doesn't have to be the private parts as such, but any orifice.
The purpose of such penetration must be to obtain sexual gratification. So it
is much broader now.[641]

The broadening does not diminish
the fact¾made evident by the homophobic
statements of politicians and officials¾that
male homosexual conduct remains the main target of the law. Such
reinterpretations, rather, show the lengths to which the state will go to cling
to a provision imposed on it by its former colonial occupiers. The laws remain
on the books in Botswana; in March, 2002, the High Court at Francistown
rejected the constitutional challenge to the Penal Code provisions, holding
that "public morals or moral values" justified the restriction of other
constitutional rights for men who have sex with men. A further challenge to
the provisions is underway at the Court of Appeal.

So-called sodomy laws provide a
means to harass, arrest, and in some cases imprison individuals. Yet they also
single out a class of people as subject to still more comprehensive
discrimination and denial of rights. They move from punishing acts toward
defining, and marginalizing, identities and groups based on those acts. A mere
fine of a few hundred Zimbabwean dollars may not seem much punishment for
consensual "sodomy"-though to an unemployed laborer it may be a great deal.
More serious, though, is the social shame, almost amounting to social death,
created by entering into a class of "sodomites" whom the country's leader has
called "worse than dogs and pigs."

People facing discrimination for
their sexual desires, sexual conduct, or gender identity or expression are
therefore likely to confront more than one law, or kind of law, confirming
their marginalization and exclusion. The "sodomy" laws that define them only
make them more vulnerable to other kinds of legal repression. Vaguely written
laws that target "obscenity," or "indecency," or broadly aimed penalizations of
"scandalous" or "offensive" public behavior, will find these identities and
communities a ready and convenient target.

1. Laws on obscenity and
censorship

Most countries in the region
continue to give their governments substantial powers of censorship, at least
on paper. Only in South Africa have the censorship mechanisms established
under white rule been significantly rolled back.

Section 54 (1) of Zambia's Penal
Code gives the executive broad censorship powers: "If the President is of the
opinion that there is in any publication or series of publications published
within or without Zambia by any person or association of persons matter which
is contrary to the public interest, he may, in his absolute discretion,"
declare "that that publication, or any publications published by the same
person or association or persons, "shall be a prohibited publication." Section
55 also punishes persons in possession of prohibited publications who do not
immediately deliver them to the nearest police station with a fine or
imprisonment of up to one year.

Still more specifically, Section
177 of the Code (in the Chapter on "Nuisances and Offences Against Health and
Convenience") imposes five years in prison or a substantial fine on any person
who:

a) makes, produces, or has in his
possession any one or more obscene writings, drawings, prints, paintings,
printed matter, pictures, posters, emblems, photographs, cinematograph films or
any other object tending to corrupt morals; or

b) imports, conveys or exports,
or causes to be imported conveyed or exported, any such matters or things, or
in any manner whatsoever puts any of them in circulation;

c) carries on or takes part in
any business, whether public or private, concerned with any such matters or
things, or deals in any such matters or things in any manner whatsoever, or
distributes any of them, or exhibits any of them publicly, or makes a business
of lending any of them; or

d) advertises or makes known by
any means whatsoever with a view to assisting the circulation of, or traffic
in, any such matters or things, that a person is engaged in any of the acts
referred to in this section, or advertises or makes known how, or from whom,
any such matters or things can be procured either directly or indirectly;
publicly exhibits any indecent show or performance or any show or performance
tending to corrupt morals.

Similar provisions exist in the
Botswana penal code. The extensive powers given government to regulate public
expression in both countries give existing enforcement agencies-particularly
the police-ample scope to intimidate, confiscate and silence.

A censorship council and an
elaborate system for judging public expression already exist in Zimbabwe, a
relic of the puritanical policies of the white regime. Zimbabwe's Censorship
and Entertainments Control Act dates back to 1967 Rhodesia. That Act
established a Board of Censors appointed by the hinister of home affairs, with
power to ban any film or "publication, picture, statue, or record" which

a) depicts any matter that is
indecent or obscene or is offensive or harmful to public morals;

b) is likely to be contrary to
the interests of defence, public safety, public order, the economic interests
of the state or public health; or

c) depicts any matter in a manner
that is indecent or obscene or is offensive or harmful to public morals.

Section 33 of the Act offers a
definition of "what is indecent or obscene or offensive or harmful to pubic [sic]
morals":

For the purposes of this Act a
matter or thing, or the manner in which any matter or thing is depicted, as the
case may be, shall be deemed to be indecent or obscene if-

a) it has the tendency to deprave
or corrupt the minds of persons who are likely to be exposed to the effect or
influence thereof or it is in any way subversive of morality;

b) whether or not related to any
sexual content, it unduly exploits horror, cruelty, or violence, whether
pictorial or otherwise;

c) offensive to public morals if
it is likely to be outrageous or disgustful to persons who are likely to read,
hear or see it;

d) harmful to public morals if it
deals in an improper or offensive manner with criminal or immoral behaviour.

Petition to an Appeals Board for
review is possible, but the minister has the option of making that Board's
proceedings secret. It was under this law that the Zimbabwe International Book
Fair was banned from hosting GALZ in 1995 and 1996.

In several countries in the
region, recent years have seen attempts to increase state powers of censorship
by instituting media regulatory bodies. As the Mugabe regime broadened its
repression in 2001, it passed a media law requiring the registration of
publications, and the accreditation of local as well as foreign journalists,
with an extensively empowered state commission.[642]
Similar legislation, however, has been also proposed in democratic Botswana.[643]
Such mechanisms extend the state's means to stifle expressions of unpopular
opinion.

2. Laws criminalizing behavior
in public

Colonial rule required extensive
regulation of public behavior-to police the behavior of whites and mold a
morally and socially cohesive community, but also to ensure that the proximity
of non-whites would be conditional and highly controlled. The laws that spun
that supporting web of rules were directed at restricting movement and
suppressing non-conforming expression and dress. They were written broadly, so
as to give authorities maximum scope to wield them against any even potentially
disruptive conduct. Most of those laws are still in place.

Section 172 of the Zambian Penal
Code illustrates the coercive expansiveness of such laws: "Any person who does
an act not authorised by law or omits to discharge a legal duty and thereby
causes any common injury, or danger or annoyance, or obstructs or causes
inconvenience to the public in the exercise of common rights, commits the
misdemeanour termed a 'common nuisance' and is liable to imprisonment for one
year." Section 172 (2) adds: "It is immaterial that the act or omission
complained of is convenient to a larger number of the public than it
inconveniences."

Other laws allow Zambian
authorities to attach a permanent label to persons unwanted in public space.
Section 178 of the Penal Code offers a catchall definition of "idle and
disorderly persons," including "every person who, without lawful excuse,
publicly does any indecent act." Any person so designated is liable to one
month in prison. Section 181 (a) provides that more than one conviction under
178 can cause one to "be deemed to be a rogue and vagabond," liable to three
months' imprisonment for the first offense and one year for each offense
thereafter. "Rogues and vagabonds" also include "every person found wandering
in or upon or near any premises or in any road or highway or any place adjacent
thereto or in any public place at such time and under such circumstances as to
lead to the conclusion that such person is there for an illegal or disorderly
purpose." Botswana's Code contains similar terms.

Zimbabwe's Miscellaneous Offences
Act is yet another relic of white rule, dating to 1964. It punishes "any
person who appears in any public place" without "such articles of clothing as
decency, custom or circumstances require"-a provision which could be (and
apparently has been[644])
interpreted to criminalize gender non-conformity in dress. It also
punishes-with a fine or imprisonment of up to six months-any person who uses
"obscene" language "in a public place," who "writes or draws any indecent or
obscene word, figure, or representation in the view of the public," or who
"commits any nuisance in any street or within view of any dwelling-house
whereby public decency may be offended." The law also defines a public place as
including (but not necessarily restricted to) any

a) road, street, thoroughfare,
lane, footpath, or bridge to which the public has access;

b) building, part of a building,
police station, police camp, stream, river, lake, dam, swimming pool, garden,
park, race course, open space, open air theatre, drive-in theatre, aerodrome,
sports ground, recreation ground, show ground, parade ground or other ground,
whether enclosed or not, to which the public or any section of the public has
access or is permitted to have access, whether on payment or otherwise and whether
or not the right of admission thereto is reserved.

The sweep of this definition
shows the long arm of social regulation. Read as a product of 1964 Rhodesia,
however, it also reveals the difficulty colonial law had in coming up with a
coherent definition of the "public." The ordinary opposition between "public"
and "private property," for example, took on a different meaning in a legal
regime where "natives" were legally barred from private ownership of land. The
above definition notably defines "public" in terms of access to property, not
rights over it. Yet even defining a "public sphere" as a space of open entry
was a mockery in countries where the vast majority of the population had no
political rights and minimal freedom of movement.

Ultimately these laws show a
domesticization, even "privatization," of the public sphere-in which (as in
Zambia's Section 171.2) the "inconvenience" or susceptibility to offence of
even a small segment of the "public" can override the "convenience" of a
larger; or in which (as in Zimbabwe's law) the "view from any dwelling-house"
should exclude any sights likely to give offence. This suited the concerns of
an embattled minority, who wanted the state to keep their lawns and vistas
clear. These vestigial laws, though, now serve the purposes of authorities
anxious to keep stigmatized people from exercising their rights to assembly,
association, and expression.

3. Laws against prostitution

States that wish to control the
public expression of sexuality, or aim to suppress association and expression
based on sexual experience or desire, almost always have a convenient
instrument on hand: existing laws against prostitution.

Human Rights Watch has elsewhere
described how the legal regulation of homosexuality can find models in the
legal regulation of sex work. In country after country, "'sexual inversion'
and its constituent behaviors [have been] analogized to prostitution, conceived
of as less relation than transaction, and stigmatized as a mode of togetherness
impermissible in the public sphere."[645]
And when homosexual association, or homosexual activism, begins to take public
form, the accusation of prostitution is a ready means to discredit it.

All five southern African
countries surveyed here effectively criminalize prostitution, under a variety
of different laws and terms-some of which allow further sweeping restrictions
on public conduct and expression. In South Africa, the apartheid-era Sexual
Offences Act (still awaiting the uncertain result of Parliamentary revision)
criminalizes prostitutes directly: it penalizes selling sex as well as
profiting from the sale of sex or maintaining a brothel. (The only aspect of
sex work that it does not penalize is the act of purchase.) A debate about the
future legal fate of prostitution-and the different routes of continued
repression, complete decriminalization, or legal regulation-has only begun
there.[646]
One sex workers' advocacy organization in South Africa says,

The
Sexual Offences Act effectively deters sex workers from laying charges of
assault, rape or labour exploitation against offenders. The criminalisation of
sex work affects sex workers' ability to practice safer sex. The continued
criminalisation of sex work enables clients, police, managers and members of
the public to perpetrate physical, sexual, verbal and economic abuse against
sex workers.[647]

Sections 140-49 of the Zambian
Penal Code, and 149-58 of the Botswanan, punish procurers, brothel-keepers, and
any "male person living on [the] earnings of prostitution." However, the
Zambian code also allows "every common prostitute behaving in a disorderly or
indecent manner in any public place" to be jailed for a month as an "idle and
disorderly person" (Section 178.a); the Botswanan code contains similar
language (Section 179.a). Under the same Sections both codes punish anyone who
"in any public place solicits for immoral purposes"-language that may be
directed at pimps, but could also be used against gay cruising.

Zimbabwe's Miscellaneous Offences
Act provides (section 4.1) that "Any person loitering in a public place for the
purposes of prostitution or solicitation" is liable to a fine or six months'
imprisonment on the first offence, and a fine and/or one year's imprisonment on
the second offence. The court can also order the person not to "loiter in any
road, street, thoroughfare, lane, footpath, sidewalk or pavement" between 6:00
p.m. and 6:00 a.m. for a period of three years. A new "Sexual Offences Act"
passed in 2001 does not criminalize the act of prostitution itself, but
displays its general aim and identifies its target in the chapter heading,
"Suppression of Prostitution."

The laws enable police to extend
the effective criminalization of prostitution to eliminate other forms of
conduct and speech. As written, they furnish a general framework for close
surveillance and control of spaces and behaviors. They do not define the limits
of state power: they enable its extension and intrusion.

4. Laws on rape

Laws against rape are a major
social and political issue in southern Africa, amid the burgeoning incidence of
sexual violence in the region. Colonial law gave successor states a heritage
of laws with inexact definitions and inappropriate scope, which have provided
only limited tools to counter the crisis.

The problems southern African
legal systems face in addressing rape are manifold. They include attitudes and
practices deeply ingrained in the police, justice, and health systems.[648]
Legal reform itself is only one step toward a solution. However, achieving adequate
definitions is more than mere toying with terminology. It means ensuring that
laws against rape and violence cover all people, and combat rather than
perpetuate inequality and discrimination.

In this light, many existing laws
fall dangerously short. In brief, the British-inspired penal codes inherited
by Zambia and Botswana defined rape as "unlawful carnal knowledge" by a man of
a woman or girl, without consent or with consent by force or fraud.[649]
Roman-Dutch common law as it developed in South Africa, Namibia, and Zimbabwe
defined rape as "unlawful sexual intercourse with a woman without her
consent." Both these definitions presented a shared set of problems:

Marital rape was expressly exempted from criminal
penalties.

Both offered definitions of what sexual acts could
constitute rape which were unspecific and subject to differing
interpretations, while restricting rape to acts committed by a man against
a woman.

Particularly in the last light, the limitations of the
rape laws intersected with ill-written laws penalizing homosexual conduct
to create a legal maze: in it, homosexual rape could receive an a lesser
penalty than heterosexual rape, or go unpunished altogether¾or could see the victim punished, for
engaging in "unnatural offences" or "sodomy."

Each of these shortcomings deserves separate treatment.

a. Marital rape

In Namibia, South Africa,
and Zimbabwe, rape by a marital partner has at last been criminalized-in South
Africa, by the Prevention of Family Violence Act, passed in 1993;[650]
in Namibia, by the Combatting of Rape Act, a comprehensive revision and
expansion of existing laws on rape that was passed in 2000. Zimbabwe moved
most recently and most reluctantly: as late as 1997, a report (aimed at
achieving more effective criminal penalties against pedophilia) by the Law
Development Commission of Zimbabwe recommended, ambivalently, that "if it is
felt that [the rule excluding marital rape from criminal penalties] is no
longer applicable or should no longer apply, it would certainly be desirable to
clarify the position clearly by legislation."[651]
Marital rape in Zimbabwe was finally criminalized by the Sexual Offences Act,
passed in 2001. More on that Act will follow below. [652]

b. Definitions of rape

A Zimbabwean
criminal law manual from the mid-1990s offers a detailed account of what may be
called the then common-law understanding of rape:

a)There
must be penetration, but it is sufficient if the male organ is in the slightest
degree within the female's body.

b)It
should not be necessary in the case of a virgin that the hymen should be
ruptured.

c)In
any case it is unnecessary that semen should be emitted.

d)If
there is no penetration there is no rape, even though semen is emitted and
pregnancy results.

In Zimbabwe, at last, this has
now changed. Zimbabwe has joined Namibia in recognizing that rape can be
committed by men or women against men or women. Namibia did so
in the Combatting of Rape Act (2000); Botswana did so in the 1998 Penal Code
(Amendment) Act, which attempted to make the Code's language comprehensively
gender-neutral. Zimbabwe, last again, followed suit in the 2001 Sexual
Offences Act-which followed four years of debate on a 1997 proposal to that
effect by Zimbabwe's Law Development Commission that this be replaced by a
gender-neutral definition, which would cover anal and oral rape as well.[654]

However, definitions of rape that
are either unacceptably limited or unacceptably vague persist. Botswana's law
reform, for instance, kept the definition of rape as "unlawful carnal
knowledge" intact. Before the amendment, the term was understood to mean
vaginal penetration. Changing the law without changing this language leaves no
clear consensus on what sexual acts the term now covers.[655]

Zambia and South Africa, on the
other hand, continue to understand rape to mean vaginal penetration only. In
South Africa and Zimbabwe, other forms of penetration, whether directed against
women or men, carry the significantly lesser penalty of "indecent assault."
(The Zambian Penal Code, on the other hand, only recognizes "indecent assault"
against females, not males.[656])

In 1999, the South African Law
Commission made similar recommendations in a detailed report on sexual offenses
laws:

The Commission proposes the
repeal of the common law offence of rape and its replacement with a new
gender-neutral statutory offence. The essence of the Commission's proposal on
rape centres around "unlawful sexual penetration." The Commission says sexual
penetration is unlawful per se when it occurs under coercive
circumstances. Coercive circumstances include the application of force,
threats, the abuse of power or authority, the use of drugs, etc. Sexual
penetration is defined very broadly by the Commission to include the
penetration "to any extent whatsoever" by a penis, any object or part of the
body of one person, or any part of the body of an animal into the vagina, anus,
or mouth of another person. Simulated sexual intercourse is also included under
the Commission's definition of "sexual penetration."[657]

Three years later, amid an
explosion of reported rape and sexual violence, these have not yet been
enacted.

c. Unequal
protection: impunity for homosexual rape, and the persistence of "sodomy"

In recommending in 1997 that rape
of men by men be criminalized, the Zimbabwean Law Commission posed one possible
objection: the effect this might have on the existing penalties for sodomy.

It has been argued however that by
amending the law so that Rape will in future include any male victim, the issue
of consent would cause a problem. It is an essential of the crime of rape that
the victim does not consent. If men were to be included in the new crime of
Rape the consent of the male victim would be a complete defence. However sex
between males is by tradition regarded as objectionable by the majority in
Zimbabwe. Yet if a male were charged under any proposed new law with
committing rape upon another male and lack of consent could not be established,
the accused would be acquitted. This, it is said, would run counter to
traditional standards or values. It would send out the wrong message.

In answer to this however the
Commission points out that in such a case (i.e. where the complainant has
consented or where lack of consent cannot be proved) the accused would still be
guilty of sodomy (where consent is not relevant). Indeed the law should be
amended so that sodomy becomes a competent alternative verdict on a charge of
rape.[658]

The implications are worth observing.
If a man accused of male rape could alternatively be charged with sodomy, so
(if consent could be established) could his accuser. Thus if the accuser in a
rape case failed to prove his own lack of consent, he could immediately face
conviction for consensual sodomy-and his own complaint could then be used
against him. The Commission did not notice that this quandary might (even if
homosexual rape were formally criminalized) discourage complaints.

Inadvertently, the Commission had
stumbled on a major inequality in sexual offenses laws. In Zimbabwe, under the
old common law, male-male sexual contact was criminalized-either as "sodomy"
for anal sex, or "unnatural offences" for other forms of contact. Yet consent
was irrelevant to the crime-and no crime expressly covered non-consensual
homosexual sex. Nor did the law make a distinction between "sodomy" between
adults, and "sodomy" practiced on a minor. Victims of male-male rape, or of
male-male child abuse, were thus left without equal protection by the law.

This has now changed in Zimbabwe,
under the terms of the Sexual Offences Act of 2001, which creates a
gender-neutral definition of rape. It has not changed in South Africa,
astonishingly. There, when setting aside the common-law offense of sodomy, the
South African Constitutional Court was at pains to declare it was

not aware of any jurisdiction
which, when decriminalising private consensual sex between adult males, has not
retained or simultaneously created an offence which continues to criminalise
sexual relations per anum even when they occur in private, where such
occur without consent or where one partner is under the age of consent.[659]

The Court held that male-male rape
would still be criminalized by common law, either as indecent assault or assault
with intent to do grievous bodily harm.

Yet the Court, committed to
equality, apparently paid little attention to the precise situation underlying
its words. Those legal protections are still inadequate: they offer lesser
penalties than rape, and thus the solution fails to acknowledge that male-male
rape is indistinguishable from other forms of rape. It deserves the same
classification, and demands the same consequences. Treating it otherwise
means perpetuating discrimination.

The provisions also, whether
intentionally or not, place the victims of male-male rape under the same
penumbra of benign indifference (at best) and malign stigma (at worst) with
which the law long regarded "sodomy." This point is worth expanding upon, and
in order to do so one must return to the situation as it was in Zimbabwe before
the Sexual Offences Act was passed.

There, the inequalities in
sentencing between men who raped women, and men who raped men or boys, long
remained acute. In one 1987 case of forcible sodomy by a twenty-eight-year-old
man upon a ten-year old boy, a sentence of ten months' imprisonment was
imposed-consistent, it appears, with general sentencing practices for
consensual sodomy. When the case was reviewed by the High Court, the judge
indeed held that

Where an accused forcibly commits
sodomy on a complainant it is no different from rape. In a matter like this,
the offence is aggravated by the fact that the complainant was a very young and
therefore helpless boy. I consider the act perpetrated on the young
complainant in this case is as much degrading as an act of rape upon a young
girl.[660]

Nonetheless, the judge
recommended only a three-year sentence-as opposed to sentences of seven to ten
years that were customary for the rape of a minor female.[661]

Meanwhile, the rape of an adult
male by an adult male could fall under a number of different criminal
categories. The defendant could be charged with sodomy; he could also be
charged with "indecent assault"-which a criminal law manual defined tautologically:
"Indecent assault consists of an assault which is itself of an indecent
character."[662]
If the assault did not involve anal penetration, the situation would be still
less clear. One Zimbabwean observer held that "a non-consensual homosexual
sexual act which falls short of sodomy is usually charged as indecent assault,
[but] there is no legal rule that this is so."[663]

The gender-neutral provisions of
the Sexual Offences Act of 2001 in Zimbabwe seem to have cleared up this
confusion. Yet the Act expressly did not eliminate the criminalization of
consensual sodomy: it explicitly states (Section 20) that "Nothing in this Act shall be taken as limiting any offence
at common law." Nor did it counteract one grim aftereffect of the long
legal limbo: the association in the popular mind between "sodomy" and
non-consensual sex between men.

Keith Goddard notes that cases of
consensual sodomy in Zimbabwe are still publicized, with the name of the
"offender," in the state-run press-and that "The angle of these articles is
always… as far as possible, to suggest that abuse was involved."[664]
This practice persists even after "sodomy" has ceased to be a rubric covering
non-consensual acts as well.

And the association of sodomy
with rape is retained in the language of the law. The Sexual Offences Act of
2001 also contains, controversially, provisions criminalizing "deliberate"
transmission of HIV.[665]
The provisions also radically increase the sentence for "sexual offences" if
the convicted person was "infected with HIV, whether or not he was aware of
his infection" [Section 16; emphasis added].[666]

The list of "sexual offences"
includes "rape or sodomy"; "sodomy" is listed twice in the law in a roster next
to rape. The language obviously demonstrates how far the Act is from contemplating
a lessening of strictures against sodomy. It shows as well that the
association between sodomy and rape continues to be vivid, even in a law partly
meant to decouple them.

But the law's terms also mean
that a person living with HIV/AIDS who engages in consensual "sodomy" (even if
he does not transmit HIV in the process) could be sentenced, not to the several
months' incarceration that a sodomy charge might usually bring-but to twenty
years. Other provisions reinforce the discriminatory effect. The law also
allows HIV testing of people charged with "sexual offences"-stating that "any medical practitioner or designated person
… may use such force as is reasonably necessary in order to take the sample or
samples" (Section 17). These results may be introduced at a public trial,
with the result that even if the accused is acquitted, his serostatus is public
knowledge. (The law specifies [Section 18] that "if it is proved that a person
was infected with HIV within thirty days after committing an offence … it shall
be presumed, unless the contrary is shown, that he was infected with HIV when
he committed the offence.") And the state as well as the persons taking samples
are exempted from damages in most cases if "detention, injury or loss" results
from the testing-including unjust imprisonment if the test results err, as well
as damages to reputation.

Thus a
man believed to be living with HIV/AIDS who has consensual sex (even safer sex)
with another man will face forcible testing, public disclosure of his
serostatus, and two decades in prison¾and enjoy no claim to redress if
the test produced a false positive result. The new law, widely hailed as
progressive in its protections for children and married women, nonetheless
deprives gay men living with HIV of any remaining shred of the right to a
sexual existence.

C. The Realm of the Customary

"Customary law" in Africa
developed as settler societies came to terms with the existence of the large,
subject but never completely subjugated societies around them. Assimilating all
"natives" to colonial civil law would have met resistance-from whites as well
as natives, for it would have meant moving indigenous peoples closer to formal
legal equality. One response of colonial authorities was to allow those societies
to decide daily life within their communities by a version of their traditional
rules-contingent, however, on white supervision, revision, and veto.

Customary law is less a
codification of custom than a travel-writer's redaction of it, and less a
system of law than a playbook for a spectator sport. The players were the
"natives," the spectators-and writers-were the whites. The fact that custom in
all African societies was complex, sometimes contradictory, and almost always
unwritten gave whites the privilege of writing it. The codes they developed
blended observed and actual practice with settlers' additions, improvisations
and deletions.

That disputes would be resolved
by a version of native rules did not mean they would be resolved by "natives"
themselves. The British policy of "indirect rule" had limits to its
indirection. As courts were systematized, the colonial executive generally
expropriated the role of the Great Chief, and his administrators intervened to
settle tribal and communal issues.[667]
In assuming community tasks of conflict resolution, colonial officials often
turned even those traditional customs that they understood from flexible
principles to rigid rules.

Two systems of law thus
developed: colonial civil and criminal law on the one hand, and customary law
on the other. The former, as the rulers' law, had primacy, the latter only a
circumscribed jurisdiction. Customary law was largely relegated to addressing
disputes over the allocation of "native" land-the small percentages of territory
left to the indigenous peoples after colonial expropriation.[668]
Private property in "native" land (the capacity of an individual "owner" to
alienate or sell it) was not recognized. This meant that allocation of
communal land was governed by kinship rules¾as
interpreted by white administrators.

In turn, this meant that marriage
would lie at the heart of customary law. As one South African authority wrote,
"The [customary] law of persons or status is, for the most part, bound up
either directly or indirectly with the question of marriage, and deals with
capacity; marriage, its consummation, consequences, and dissolution; children,
their minority, tutelage, and emancipation; and succession.…" Customary law had
other aspects, but "Since Native law deals mostly with rights flowing from
status, there is not much left over."[669]

"Native" marriage was thus given
over to the colonizers to codify. White settler societies were almost
unanimous in their disapproval of two aspects of native marriage: polygyny and
the practice of lobola, the exchange of bridewealth.

Images of the un-Christian
polygynous family were used to discredit all "native" marriages not performed
before state or religious authorities, and relegate them to inferior legal
status.[670]
Bridewealth presented more complex problems. Communities clung closely to the
practice of the groom's family giving goods in exchange for the bride, as a key
way of reallocating wealth.

In the end, most colonies reached
a compromise: customary law was recognized, but customs were subjected to a
morals test. For instance, South Africa's Native Administration Act of 1927
stated that Courts of Native Commissioners had discretion to decide questions
"according to the Native law… provided that such Native law shall not be
opposed to the principles of public policy or natural justice."[671]Lobola almost always passed the test . Polygyny was recognized in some
jurisdictions, only silently tolerated in others.

The morals test allowed settlers
to mold custom in the simulacrum of their own ideals. Native marriage was so
far as possible re-imagined. No longer, in this vision, an instrument for
integrating extended kinship units, it would be forcibly pruned into a nuclear
and exclusive union that then would stand at the center of "traditional" law
and culture: in the Victorian phrase, "The voluntary union for life of one man
and one woman to the exclusion of all others."[672]
Many women lost rights and status, as patriarchal domesticity was packaged for
export from the metropolis to the colonies.[673]

It is naïve to romanticize
"authentic" lineaments of custom anterior to colonialism; it is sensible only
to recognize their unrecoverability, the impossibility of fully deciphering
traditional cultures beneath their codified, reified versions. However, given
the moral preoccupations of the codifiers, putatively reconstructing customary
relationships around a nuclear model also entailed eliminating any possible
alternatives.[674]
The morals test implicitly meant the Christianization of custom. In the
process, any residual place for gender or sexual nonconformity which customary
practice might once have accorded was inevitably, in the new enactments,
expunged. Moreover, the arguably-intensified subjection of women made it doubly
difficult for them to form affective relationships, or enter into roles in the
community, outside heterosexual marriage.

As white rule ended, fledgling
states faced a quandary. The distinction between civil and customary law
replicated that between settler rulers and subordinate natives. One set of
pressures demanded that customary law be rescued from its inferior juridical
position. Yet another demanded it be harmonized or joined with civil law, to
ensure legal equality across the board.

Governments have addressed this in
varying ways. In Zambia, for instance, customary courts were given little
support.[675]
In some other states, they have been strengthened¾with
mixed results. In Zimbabwe and Botswana such courts have reportedly bolstered
public confidence in the justice system, perhaps owing more to their relative
accessibility than to the supposed familiarity of the versions of custom they
enforce. However, lines increasingly blur between customary and other courts,
with customary judges often deciding on penal code cases that ordinarily would
be referred to Magistrate's Courts. [676]

A 1997 newspaper report in
Botswana indicated that a customary court in Mahalapye had ruled in at least
two separate case of homosexual sex between prison inmates. In one such case,
one of the prisoners received "four lashes and an additional four months on his
custodial term"; the other received an additional eighteen months.[677]
While the last known arrest for "unnatural offences" to reach a magistrate's
court in Botswana was in 1994, the article implies that cases may be relatively
common in customary courts. In the following year, amid debates about
decriminalizing homosexual conduct, several of Botswana's traditional leaders
were polled: one declared,

It should remain illegal because
it is against our morals and, should I find one in the tribe, he would be
publicly flogged at the kgotla [courtyard] in full view of tribespeople,
just as witches of yore were punished.[678]

The response suggests the
atmosphere surrounding cases of sexual non-conformity before customary courts.

Efforts at harmonizing or joining
customary and civil law have also had mixed results. In South Africa, the
Customary Marriages Act of 1998 tried to balance the gender equality provisions
of the constitution with the practice of customary marriage.[679]
It finally ended the minor status of women in customary unions, giving them
full legal and property rights. In the process, the law also recognized
polygamous marriages,[680]
and required state registration of customary unions. In Zimbabwe, the Legal
Age of Majority Act of 1982 declared all persons, regardless or race or sex,
legal adults at eighteen. Yet a Supreme Court decision in Magaya v Magaya in
1999 still denied equal inheritance rights to women in customary unions-arguing
that customary law took precedence over anti-discrimination protections in
Zimbabwe's constitution. Such disturbing developments are possible in part
because many constitutions in the region explicitly exempt customary law from
the equality protections they offer.[681]

That fact in turn points to, as
it reinforces, another dilemma: the gathering tendency, in African politics, to
pit "rights" against "custom." Again and again human rights and civic freedoms
are accused of promoting disruptive individualism, of tearing people away from
their roots, their inherited social roles, their communities and forebears.
That discourse and dilemma are central to the issues raised by this report, and
the state rhetoric it describes. The dynamics of colonial division in large part
underlie it.

In many colonial regimes, the
realm of the "customary" was opposed to the realm where citizens enjoyed
"rights." Entry into the latter, thought sometimes feasible for the native,
carried a fearsome price. "Custom" gave the "native" a share in communal
ownership of whatever lands were left in native hands. To have "rights,"
though, meant entering the settler's world of cash economy and private
property-and surrendering the stake in communal property. For the native, this
dispossession was a devil's bargain. The world of civil law and "rights" came
to be seen not merely as the antithesis of the traditional, but as a threat to
integration and belonging.[682]

The colonial reconstruction of
"custom" around an exclusionary ideal of heterosexual marriage combined in
dangerous ways with this value attached to the "customary" as the authentic
antidote to "rights." Exactly the realms that some constitutions exempt from
equality protections-the personal and familial-came to appear the preserve of genuine
traditional belonging, regardless of the way colonialism had recast them.
Modern inequality was projected onto the past; versions of contemporary,
compulsory heterosexuality came to dominate nationalist discourse, as an
ideology of unsullied culture. The spread of homophobia in Southern Africa,
and its identification with "authentic" indigenous values, has much to do with
the injustices buried in the history of customary law.

Methodology

Human Rights Watch and the
International Gay and Lesbian Human Rights Commission conducted research for
this report from November 1998 through December 2001, with additional
documentary research carried on afterward. Human Rights Watch conducted a
mission to South Africa and Namibia in 2001. IGLHRC visited Botswana, Namibia,
Zambia, and Zimbabwe in 1998; returned to Zambia and Zimbabwe in 2000; and
conducted additional missions to Botswana, Namibia, and South Africa in 2001.
Human Rights Watch staff also cooperated with IGLHRC in organizing a human
rights workshop for regional activists in South Africa in 1999, at which the
conceptual outlines of this report were discussed in detail. We worked closely
with many nongovernmental organizations to identify and interview lesbians, gay
men, bisexuals, and transgender people, as well as other victims of abuse or
discrimination based on their sexual conduct, many of whom were reluctant to
speak with us until we assured them that we would protect their identity. We
agreed to protect the identity of many of the people we interviewed, and in
appropriate cases have used pseudonyms and withheld any other identifying
information. Cases where pseudonyms are used are identified in the
footnotes. In some other cases, at the request of the interviewee, we have
used only his or her first name. We also interviewed human rights activists,
including women's rights activists, lawyers, HIV/AIDS peer educators and
organizers, academics, journalists, and government officials.

The vast majority of people we
interviewed in South Africa were of African descent; approximately twenty
percent were white, coloured, or Indian. In other countries, a still larger
proportion of those interviewed were of African descent. In Botswana, we
interviewed men and women in Gaborone. In Namibia, we interviewed men and
women living in Windhoek and in surrounding townships. In South Africa, we
interviewed men and women living in urban areas, townships and rural areas,
mostly in Gauteng, KwaZulu-Natal, and Eastern and Western Cape provinces. In
Zambia, we interviewed men and women living in Lusaka and surrounding
high-density areas, as well as visiting a penitentiary and court in Kabwe. In
Zimbabwe, we interviewed men and women living in Harare, Mutare, Bulawayo, and
Masvingo, as well as high-density suburbs and rural areas.

I wanted to speak to my president
face to face one day and tell him, I am here. I wanted to say to him: I am not
a word, I am not those things you call me. I wanted to say to him: I am more
than a name.

We
challenge governments and those who hold power to end abusive practices and
respect international human rights law.

We enlist the public and the
international community to support the cause of human rights for all.

HUMAN RIGHTS WATCH

Human Rights Watch
conducts regular, systematic investigations of human rights abuses in some seventy
countries around the world. Our reputation for timely, reliable disclosures has
made us an essential source of information for those concerned with human
rights. We address the human rights practices of governments of all political
stripes, of all geopolitical alignments, and of all ethnic and religious
persuasions. Human Rights Watch defends freedom of thought and expression, due
process and equal protection of the law, and a vigorous civil society; we
document and denounce murders, disappearances, torture, arbitrary imprisonment,
discrimination, and other abuses of internationally recognized human rights.
Our goal is to hold governments accountable if they transgress the rights of
their people.

Human Rights Watch
began in 1978 with the founding of its Europe and Central Asia division (then
known as Helsinki Watch). Today, it also includes divisions covering Africa,
the Americas, Asia, and the Middle East. In addition, it includes three
thematic divisions on arms, children's rights, and women's rights. It maintains
offices in New York, Washington, Los Angeles, London, Brussels, Moscow,
Tashkent, Tblisi, and Bangkok. Human Rights Watch is an independent,
nongovernmental organization, supported by contributions from private
individuals and foundations worldwide. It accepts no government funds, directly
or indirectly.

The mission of the International
Gay and Lesbian Human Rights Commission (IGLHRC) is to secure the full
enjoyment of the human rights of all people and communities subject to
discrimination or abuse on the basis of sexual orientation or expression,
gender identity or expression, and/or HIV status. A US-based non-profit,
non-governmental organization (NGO), IGLHRC effects this mission through
advocacy, documentation, coalition building, public education, and technical
assistance.

ACKNOWLEDGMENTS

This report was written by Scott
Long, consultant to Human Rights Watch and former program director of the
International Gay and Lesbian Human Rights Commission. A. Widney Brown, deputy
program director of Human Rights Watch, and Gail Cooper, consultant to Human
Rights Watch, contributed substantial portions to the text. For Human Rights
Watch, the report was edited by Ian Gorvin, program consultant; Bronwen Manby,
deputy director of the Africa Division; and Dinah PoKempner, general counsel.
For IGLHRC, it was reviewed by Sydney Levy, former director of communications.

The report is based on research
conducted between 1998 and 2002. Scott Long carried out a mission to Botswana,
Namibia, South Africa, Zambia, and Zimbabwe for five weeks in
November-December, 1998 and conducted thirty-one interviews which laid the
groundwork for future documentation. Scott Long and Widney Brown returned to
South Africa in October-November 1999 for two weeks, for a regional workshop
for LGBT activists, during which they helped formulate the conceptual outlines
of this report in cooperation with activists. Scott Long returned to Zambia
and Zimbabwe for five weeks in July-August 2000, and conducted nineteen interviews
in Zambia and thirty-nine interviews in Zimbabwe, as well as an additional five
interviews in South Africa. Scott Long returned to South Africa for two weeks
in November 2001 and conducted nineteen interviews in Johannesburg and Soweto.
Kagendo, Africa/Southwest Asia program officer for IGLHRC, visited Botswana,
Namibia, and South Africa in November-December 2001, and in five weeks
conducted eight interviews.

For Human Rights Watch, Widney
Brown and Gail Cooper conducted a mission to South Africa and Namibia in
July-August 2001. In South Africa, Widney Brown interviewed thirty-one people,
mostly in Gauteng and Eastern Cape provinces. Gail Cooper interviewed an
additional forty people in South Africa, mostly in Gauteng, KwaZulu-Natal, and
Western Cape provinces. Widney Brown continued to Namibia, and conducted
thirteen interviews in Windhoek and surrounding townships.

Human Rights Watch wishes to
thank many persons and institutions who assisted this research during four
years of work on the project. The John D. and Catherine T. MacArthur
Foundation provided generous funding to support this project from its
inception. Human Rights Watch also expresses its gratitude to the David Geffen Foundation; the Gill Foundation; James C.
Hormel and Timothy C. Wu; Keith Recker; and the Snowdon Foundation, for their
ongoing support of its work on lesbian, gay, bisexual, and transgender people's
rights.

Julie Dorf, former executive
director of IGLHRC, helped conceive and shape this project from the beginning.
Rona Peligal of Human Rights Watch, and Leslie Minot, Octavia Morgan, and
Meredith Wood of IGLHRC, all played important roles in articulating the
importance of the project and obtaining the support of funders.

Matthew V. Jones, intern at Human
Rights Watch, provided important research assistance for this report. Ali
Arain, program associate at IGLHRC, transcribed numerous interviews. Jonathan
Horowitz and Patrick Minges oversaw production and publication.

In Botswana, Rodgers Bande of
LEGABIBO provided invaluable help in our research; so did Joe and Mike of the
same organization, as well as the staff of Ditshwanelo, including Alice Mogwe,
and Father Richard Chance of the Anglican Church.

In Namibia, we received steady
help and guidance from The Rainbow Project and Ian Swartz; Sister Namibia,
particularly Elizabeth Khaxas and Liz Frank; Clement Daniels and Norman Tjombe
of the Legal Action Center; and the National Society for Human Rights and Phil
ya Nangoloh. Gwen Lister and other staff of the Namibian also provided
generous assistance over time.

In South Africa, we wish to
acknowledge with particular gratitude the support and assistance of Midi Achmat
and Zackie Achmat; Jonathan Berger; Justice Edwin Cameron; Beverly Ditsie;
Mazibuko Jara; Jonathan Klaaren; Douglas Torr; the Durban
Gay and Lesbian Community Health Centre, especially Nonhlahla Mkhize and
Vasu Reddy; the Gay and Lesbian Equality Project in Johannesburg, particularly
Wendy Isaack, Evert Knoesen, and Carrie Shelver; the Masimanyane Women's
Center, East London, and Lesley Ann Foster; the National Association of People
With AIDS in Germistown, especially Thanduxulo Doro; OUT Pretoria and Dawie
Nel; OUT Mamelodi; and the Township AIDS Project in Soweto, and in particular
Thulani Mhologo.

Our work in Zimbabwe would have
been impossible without the extraordinary openness and generosity of the staff
and volunteers at Gays and Lesbians of Zimbabwe (GALZ), who allowed Scott Long
to work from their offices for several weeks and shared extensive time and
crucial information. Keith Goddard, Peter Joaneti, Chesterfield Samba, and
Romeo Tshuma were particularly helpful in making available their expertise and
effort. Derek Matyszak of the University of Zimbabwe also offered important
assistance, as did Dominic S., and Chipo "Tina" Machida. Oliver Phillips
provided support, context, and contacts.

Others who assisted with this
project cannot be named, for reasons of safety. Still others have not survived
to see it achieve fruition. Two people whose work inspired many in Zimbabwe,
Poliyana Mangwiro and Carlos Mpofu, died before this report was completed.
Poliyana, who died in 2001, was a firm support to lesbians and people living
with HIV in her country, and a powerful advocate on their behalf; her voice,
with a calm confidence which confuted others' anger, had carried the urgency of
their needs to an international audience. Carlos, who died in 2002, lived the
disappointment, the hope, and the loneliness of youth with rapid intensity; his
death did not extinguish his will to accomplish change, but seemed to seal and
preserve it, an inheritance for others. We dedicate this report to them: and
to those who will inherit.

[1]
Letter from the Ministry of Information, Posts, and Telecommunications'
director of information, Bornwell Chakaodza, to Mrs. Trish Mbanga, executive
director of the Zimbabwe International Book Fair, July 24, 1995.

[2]
Statement to all Zimbabwe International Book Fair participants, July 31, 1995.

[5]
Quoted in "Comment" (Editorial) in The Chronicle, Bulawayo, February 3,
1995. See Human Rights Violations Against Sexual Minorities in Zimbabwe, Submission
from Gays and Lesbians of Zimbabwe (GALZ) to the World Conference Against
Racism (WCAR), 2001, pp. 9-10.

[7]Human
Rights Violations Against Sexual Minorities in Zimbabwe, Submission from Gays
and Lesbians of Zimbabwe (GALZ) to the World Conference Against Racism (WCAR),
2001, p. 8.; IGLHRC interview by Scott Long with Keith Goddard, GALZ, Harare,
Zimbabwe, December 8, 1998. Peter Joaneti, a long-time GALZ member, told IGLHRC
that after the book fair controversies, "Most whites withdrew their
membership. We were too many blacks for them, and there were too many police.
I don't know what was worse for them. Keith was the only one who stuck it
out. But a lot of blacks felt we had nothing left to lose." IGLHRC interview
by Scott Long with Peter Joaneti, Harare, Zimbabwe, August 9, 2000.

[10]
Quoted in Dunton and Palmberg, "Human Rights and Homosexuality in Southern
Africa,"p. 13. The letter, dated August 3, 1995, had been organized by
U.S. Representatives Barney Frank and Maxine Waters.

[18]
Statement by Gays and Lesbians of Zimbabwe, September 5, 1996. In subsequent
years, GALZ was able to participate in the Fair by placing its materials on a
stand owned by the fair itself and shared for free by a number of human rights
organization. However, the state-controlled press continued to attack the
organization's presence: in 1998, for instance, the Herald warned that
"Gays and Lesbians of Zimbabwe are exhibiting at the Zimbabwe International
Book Fair this year at a Human Rights Collective Stand but are distributing
their pamphlets to children under 18 in defiance of conditions set by the fair
organizers." "GALZ at Book Fair," Herald, August 8, 1998. GALZ
responded by observing that its information "is entirely factual in nature and
would not look out of place in any general encyclopedia-some of it is of a
religious nature! A folded pamphlet describes the basic services of GALZ….
Although children have the basic right to information principally so they can
protect themselves, GALZ realizes that, in a climate of intense homophobia,
disseminating information to minors will be construed as recruiting children.
For this reason, the Book Fair and GALZ have tried to ensure that GALZ
literature is given only to adults. However, the graphic descriptions of homosexual
acts which appear daily in the state newspapers and which are accessible to any
child who can read, are a great deal more graphic than anything that is
produced by GALZ." Statement from Gays and Lesbians of Zimbabwe, August 7,
1998. Gradually GALZ's quiet presence came to be, if not entirely accepted,
relatively unnoticed. An IGLHRC representative was present at the 2000 book
fair on the day President Mugabe visited the grounds. His entourage mistakenly
guided him toward the area where NGOs-many of them opponents of his regime-had
their booths, the human rights stand among them. The GALZ representative there
had time to cover up the organization's materials, and turn over his lapel to
hide the rainbow flag he was wearing, before a confused Mugabe, trying to
leave, barged toward the stand. He shook the GALZ representative's hand before
hurrying out of the area.

[19]
"We must do something to curb rape, child abuse, and bestiality, but this is a
different class": Mike Auret, director of the Catholic Commission for Justice
and Peace, quoted in "Castrate gays, Zimbabwe campaigner says," Reuters, March
5, 1997.

[20]
Only in the late 1990s, when questions of constitutional and land reform-and
the emergence of a credible opposition party-galvanized the country, did civil
society in Zimbabwe begin actively challenging state policy. One observer
writes, "For most of the post-colonial period [in Zimbabwe], NGOs have
maintained a cautious ambivalence towards the state, finding ways to
accommodate the development discourse of the state and avoiding frontal,
policy-lobbying confrontations with the government…. Within this context,
McFadden (1999) [author of an unpublished study on Zimbabwean feminism] has
criticised women's organisations who have tended to 'shy away from making more
radical demands of the state, preferring instead to work with and in the state,
more often than not as an expression of the personal/class interests which the
dominant leadership bring into the movement structure.'" Brian Raftopoulos,
"The State, NGOs, and Democratisation," in Sam Moyo, John Makumbe, and Brian
Raftopoulos, eds., NGOs, the State and Politics in Zimbabwe (Harare:
SAPES Books, 2000), p. 45. GALZ (and particularly its programmes manager,
Keith Goddard) -excluded from the start from the state's "development
discourse," and with little or no opportunity to "work with" government
institutions-may be credited with pioneering a new NGO style of using rights
discourse to mount conspicuous public challenges to state policy. It has found
imitators in civil society as the situation in Zimbabwe deteriorates. Yet
although it is far more closely embedded in civil society networks than anyone
would have thought possible seven years earlier-partly due to its compelling
rhetoric and example-it still has comparatively few open allies.

[24]
"Churches against homosexuals at world congress," Herald, June 15, 1996.

[25]
IGLHRC interview by Scott Long with Keith Goddard, Harare, Zimbabwe, December
8, 1998. See also Weston Kwete, "WCC Confirms GALZ's participation at
forthcoming Harare conference," Sunday Mail, April 26, 1998. The
Catholic Commission for Justice and Peace, a human rights group, also spoke out
on behalf of GALZ from the time of the book fair; like Ecumenical Support
Services, it faced intense criticism as a result.

[31]
Concern about Orthodox threats is reflected in internal WCC documents: see
World Council of Churches Executive Committee, Document Number 7, "Orthodox
Participation in the WCC: The Current Situation: Issues and Ways Forward,"
document dated September 15-18, 1998.

[32]
A sign of the WCC's exceptional caution in responding to rights violations in
Zimbabwe-and to the issue of homosexuality-can be found in a 1994 letter from
Konrad Reiser, General Secretary of the WCC, to a minister who had expressed
concern over reports of arrests in Zimbabwe. The general assembly had already
been scheduled for Harare in four years' time; Reiser, visiting Zimbabwe in
preparation, had been asked to raise the arrests with the minister of home
affairs. He responded by citing the imputation, invoked by Zimbabwean
officials, that homosexuality and pedophilia were linked: "I have no
information about the alleged detention of seven members of the Association of
Gays and Lesbians in Zimbabwe and obviously have not been able to speak to the
minister about these cases which have not been known to me. What has been
pointed out to me is the fact that there have been cases where particularly
young boys have been drawn into homosexual activities against their will and
without the consent of their parents. Both church and government authorities
have expressed concern about these developments and indicated that they would
do whatever was necessary to prevent a continuation of such practices. Lacking
any further detail, you will understand that I see no possibility for the WCC
to take a public position. The government representatives in Zimbabwe with
whom we have been in contact have been very cooperative and I would need to be
convinced that we are faced with a situation of obvious injustice and
harassment." Letter from Konrad Reiser to the Rev. Kittredge Cherry, September
6, 1994, on file with IGLHRC.

[33]
"Zimbabwe's Mugabe lashes out at homosexuals," Reuters, April 23, 1998; see
also "Chikerema to be buried at Kutama cemetery on Saturday," The Herald,
April 23, 1998.

[55]
Erhard Gunzel, "Nujoma blasts gays," Windhoek Advertiser, December 12,
1996. The quotation was released to the press by an anonymous woman present.
Although the speech was filmed by the Namibian Broadcasting Corporation (NBC),
exactly what the president said cannot be reconstructed. Less than a week
later, NBC told print reporters that the tape had been destroyed. "NBC says
tape of President's speech 'erased,'" Windhoek Advertiser, December 18,
1996.

[56]
Alpheus !Naruseb, Department of Information and Publicity, SWAPO, in a press
release by SWAPO, January 28, 1997. See "Alpheus comes out on gay issue," Namibian,
January 29, 1997; and "Mr !Naruseb and the seeds of hate…" Windhoek
Advertiser, January 31, 1997.

[61]
The same speech reportedly warned Namibians against marrying foreigners, and
urged a revival of traditional¾customary,
often polygynous¾marriage as a response
to HIV/AIDS: Oswald Shivute, "Round up gays, urges Nujoma," Namibian, April
2, 2001.

[63]
The interview was conducted for the BBC but apparently not broadcast. See
Tangeni Amupadhi, "Nujoma 'ready' for fourth term," Namibian, April 10,
2001. The full text of the interview can be found at www.namibian.com.na.

[79]
"Press Release: The Ministry of Justice's Response to Attacks by the National
Society For Human Rights in Namibia against Mr. Utoni Nujoma, Chairman of the
law Reform and Development Commission and Government Coordinator for Human
Rights," July 30, 2001, on file with IGLHRC.

[83]
Werner Menges, "Gay rights dealt blow," Namibian, March 6, 2001. The
Supreme Court decision was the result of a government appeal against an earlier
High Court decision in Frank's favor-and was particularly painful because the
High Court had in fact made a progressive finding in favor of
sexual-orientation rights. Justice A. J. Levy, in the High Court decision, had
held that Frank's and Khaxas' relationship could be construed as a "Universal
Partnership" resembling what might elsewhere be called a common-law
partnership, "as between a man and a woman living together as husband and wife
but who have not been married by a marriage offer"-a status with some
recognition in Namibian (Roman-Dutch) common law. It also found that the
Namibian Constitution's prohibition, in article 10.2, of discrimination based
on sex should require that a relationship between two women also qualify for
recognition as a Universal Partnership. In so doing, the ruling had created a
space for same-sex partnerships to be acknowledged in Namibian law. That
decision-similar to an emerging pattern of jurisprudence in South Africa-had
raised hopes that the courts could interpret equality protections in the
Constitution in inclusive ways. (The constitution of Namibia, much more
narrowly than that of South Africa, bars discrimination only on the basis of
"sex, race, colour, ethnic origin, religion, creed or social or economic
status.") High Court of Namibia, Frank and Khaxas v. Chairperson of the
Immigration Selection Board, case no. A 56/99.

[84]
Frank's petition for residency was finally granted later that year, when the
Ministry of Home Affairs relented. However, the concession came only after the
government had won on its point of principle. The highest court cited Nujoma's
and Ekandjo's own remarks as evidence that Namibian norms and values opposed
equality protections based on sexual orientation: it concluded that
constitutional anti-discrimination provisions did not mandate recognition of
same-sex relationships.

[100]At
one point he announced that Zambia's gays and lesbians numbered over half a
million, creating visions of NGOs of unprecedented size changing the country's
political scene. See "Zambia has 500,000 gays, says Zimt," Post, September
3, 1998. At another, he warned there were homosexuals in government, prompting
the home affairs minister to demand details, and eliciting a Times of Zambia
headline declaring "Zulu must name state sodomites."

[110]
See I. Mwanawina, "Zambia," in Aderanti Adepoju, ed., The Impact of
Structural Adjustment on the Population of Africa: The Implications for
Education, Health, and Employment, UNFPA (London: James Currey, 1993). See
also, N. R. Simutanyi, "Organised Labour, Economic Crisis and Structural
Adjustment in Africa: The Case of Zambia," and O. B. Sichone, "Democracy and
Crisis in Zambia," both in Democracy in Zambia: Challenges for the Third
Republic, ed. Owen Sichone and Bornwell Chikulo (Harare: Sapes Books,
1996).

[111]
Muleya Mwananyanda of the Zambian human rights group Afronet told IGLHRC that
Chiluba's constitutional commitment to a "Christian nation" was partly an
effort to give his ramshackle coalition an ideology: "Kaunda had his humanist
thing, so Chiluba thought, I will have my Christian thing." IGLHRC interview by
Scott Long with Muleya Mwananyanda, Afronet, Lusaka, Zambia, December 2, 1998.
"Humanism," a vague synthesis and resembling a form of Christian socialism, had
become the official ideology of Kenneth Kaunda's one-party state in the 1970s.
With similarities to Julius Nyerere's Ujamaa philosophy in Tanzania, it
stressed "traditional society as a kind of extended family encompass[ing]
moral, political and economic relations": Henry S. Meebelo, Main Currents
of Zambian Humanist Thought (Lusaka: Oxford University Press, 1973), p. 4.
If Chiluba's change of ideology and phrase had any consequences in the
practical realm, it was to replace the extended networks of Kaunda's UNIP
government with a more nuclear and patriarchal style and circle.

[113]
"Mambo, gay rights lobbyist differ," Times of Zambia, October 8, 1998;
and IGLHRC interview by Scott Long with Alfred Zulu, ZIMT, Lusaka, Zambia,
December 2, 1998. Mambo, along with other leaders, saw the banning of
homosexual organizations as analogous to the banning of certain missionary
religious organizations which threatened the popular reach of older churches:
thus Mambo also urged the government to control the registration of churches
and to prohibit "Satanic churches." Lorraine Makumba, "Universal Church ban
hailed," The Times of Zambia, September 4, 1998.

[114]
Pauline Banda, "Gender Focus: Homosexuality not new but can be stopped here," Zambia
Daily Mail, September 17, 1998.

[138]
IGLHRC telephone interview by Scott Long with Zackie Achmat, November 22,
1998. For a not-dissimilar account of the effects of structural adjustment and
government retrenchment on general political life in Zambia, and the resort to
"ritual politics" in the face of state impotence, see Owen B. Sichone, "The
Sacred and the Obscene: Personal Notes on Political Ritual, Poverty and
Democracy in Zambia," in Jonathan Hyslop, ed., African Democracy in the Era
of Globalisation (Johannesburg: Witwatersrand University Press, 1999).

[139]
Molosiwa Selepeng, political affairs secretary to the president of Botswana,
and Botsalo Ntuane, BDP executive secretary, both quoted in "The people say no
to homosexuality: and the government abides by their will," Midweek Sun, Gaborone,
Botswana, June 3, 1998.

[145]
"Sodom and Gomorrah: Churches warn against the decriminalization of
homosexuality," Midweek Sun,Gaborone, May 27, 1998. The debate continued
into the following year; at a University of Botswana panel in early 1999, a
"right-wing youth activist" stated, to approval from the student audience, that
the country was "traumatised by homosexuality" and other "ideas from overseas
and donors." "Botswana debates the relaxation of anti-gay laws," Johannesburg
Daily Mail and Guardian, January 19, 1999.

[147]
"Botswana president: 'Don't be judgmental on homosexuals," at http://www.mask.org.za (citing a report in the Mmegi
Monitor, Gaborone, Botswana), retrieved August 17, 2002.

[148]
IGLHRC interview by Scott Long with Mike, Gaborone, Botswana, December 18,
1998; and IGLHRC interview by Kagendo with Joseph, Gaborone, Botswana, November
8, 2001.

[149]
IGLHRC interview by Scott Long with Father Richard Chance, Gaborone, Botswana,
December 19, 1998. Homophobic rhetoric and state abuse, sometimes accompanied
by the approval of religious authorities, have spread far to the north in
Africa. In another example, in 1998, President Yoweri Museveni of Uganda told
a press conference, "When I was in America, some time ago, I saw a rally of
300,000 homosexuals. If you have a rally of 20 homosexuals here, I would disperse
it."("Museveni
warns off homosexuals, Monitor, Kampala, Uganda, July 22, 1998.) His
minister of gender, labour, and social development later warned, "The West is
bringing up homosexuality and lesbianism under a different name, called sexual
orientation … These people want their ideas to be focused in every programme,
in case you come across something like sexual orientation, you have to think
twice before you defend it."(Minister Janet Mukwaya, quoted in
"Minister warns of homosexuals," Crusader, Kampala, Uganda, August 18,
1998.) In September, 1999, after (inaccurate) published reports of a wedding
between two men in Uganda, Museveni told a conference on reproductive health:
"I have told the CID [Criminal Investigations Department] to look for homosexuals,
lock them up and charge them."("Museveni opens a war on gay men," Monitor,
September 28, 1999. See also "Wandegeya homos marry," Sunday Vision, Kampala,
Uganda, September 12, 1999; "Police probe Kampala's homosexual weddings," New
Vision, Kampala, Uganda, September 13, 1999; and "Museveni, police homo
probe out: 'Story was made up,'" Monitor, October 5, 1999.) A few days
after Museveni's outburst, Kenya's then President Daniel Arap Moi-apparently
prompted by a similar rumor of a gay wedding there-declared, "Homosexuality has
no place in Kenya." (John Kamau, "Gay wedding row forces government to open
the closet," Sunday News, Dar es Salaam, November 7, 1999.)

In Uganda in 1999, several people were jailed in the
wake of Museveni's mandate. Five men and women who had formed a tiny lesbian
and gay group were tortured. Others, terrified, fled the country. Meanwhile,
the head of Uganda's Anglican Church, Archbishop Livingstone Mpalanyi-Nkoyooyo,
proclaimed immediate support for Museveni. (Daniel Elwana, "Church backs
Museveni against homosexuality," Daily Nation, Kampala, Uganda, November
14, 1999.) A key official in Museveni's governing Movement published an article
on homosexuality which he declared "the official Movement position on the
matter." He charged Uganda's "elite and intellectuals" with abandoning their
own society: "Just because they have heard that homosexuality exists even
amongst the most powerful institutions of the developed societies such as
governments, IMF, and World Bank, they believe that these can be some of the
virtues which can be packaged to develop the Third World. The starting point is
that homosexuality has, hitherto, not been known or practiced in our
communities." (James Magode Ikuya, deputy director of information and public
relations at the Movement Secretariat, "Movt can never embrace homos," Monitor,
undated clipping, November 1999.) And in March, 2002, while accepting an
award for his country's HIV/AIDS prevention programs, President Museveni said,
"We don't have homosexuals in Uganda." ("Commonwealth honors Museveni," New
Vision, March 4, 2002.) See also Amnesty International Appeal, "Uganda:
Criminalizing Homosexuality: A License to Torture," June 27, 2001; and Amnesty
International, Crimes of Hate, Conspiracy of Silence: Torture and
Ill-Treatment Based on Sexual Identity, AC 40/016/2001, pp. 4-6.

[151]
African National Congress, "ANC Policy Guidelines for a Democratic South Africa,"
as adopted at National Conference, 28-31 May 1992; clause B5.1.8, in a section
outlining the ANC's position on the Bill of Rights for the prospective new
constitution, said any bill must respect "the right not to be discriminated
against or subjected to harassment because of sexual orientation."

[170]
See Max Hamata, "SFF Launch Earring 'Purge,'" Namibian, May 2, 2001; and
"Govt. Repeats That No 'Earring' Order Given," Namibian, May 9, 2001.
Government spokesmen denied that any order from the president lay behind the
actions, and after reporters documented the arrests, SFF officials reportedly
reprimanded some of the arresting officers. However, SFF officers also
threatened a journalist from the Namibian who was interviewing two of
the victims, destroying his notes and threatening to impound his camera.

[182]
IGLHRC interview by Scott Long with Francis Chisambisha, Johannesburg, South
Africa, July 17, 2000.

[183]
IGLHRC interview by Scott Long with Francis Chisambisha, Johannesburg, South
Africa, July 17, 2000. One of the friends who had introduced the minister to
Chisambisha later confirmed that the meeting took place: IGLHRC interview by
Scott Long with "D.", Lusaka, Zambia, July 24, 2000.

[184]
IGLHRC interview by Scott Long with Francis Chisambisha, Johannesburg, South
Africa, July 17, 2000.

[194]
Although Kwashe was never charged with an offence, and was not cross-dressing,
a provision in Zimbabwe's Miscellaneous Offences Act criminalizes any person
who "appears in any public place" without wearing "such articles of clothing as
decency, custom, or circumstances require": the language is an open invitation
to police regulation of any remotely unconventional dress. See the Appendix
for more information on this and similar provisions in the region.

[195]
Letter from Kantor and Immerman, legal practitioners, to commissioner of
police, June 19, 1998, "Notice in Terms of Police Act (Chapter 11:10) and State
Liabilities Act (Chapter 8:14)." On file with Human Rights Watch. See also,
communication from Kantor and Immermann to Keith Goddard, December 1, 1998.

[196]
This and subsequent quotations are from an IGLHRC interview by Scott Long with
Dominic S., Bulawayo, Zimbabwe, August 14, 2000.

[197]
IGLHRC requested a meeting with Mills Security officials in Bulawayo in August
2000, but the request was denied.

[206]
It is worth noting that the law used to punish homosexual conduct in Egypt, a law
on the combatting of prostitution (law 10/1961), actually requires that
"debauchery" be "habitual"-that is, that "debauched" acts (defined in
jurisprudence as anal intercourse between men) be committed by the accused at
least twice with the same or different people.

[208]
IGLHRC interview by Scott Long with Colonel C. Musemba, superintendent of
crime, Zambian National Police, Lusaka, Zambia, July 24, 2000. Colonel Musemba
promised to produce statistics of arrests and convictions under articles 155
and 158, the relevant provisions of Zambia's penal code (for more information,
see Appendix); to date these have not been forthcoming.

[210]
February 25, 1997 statement in GALZ files; "Martin's" name has been changed.

[211]
They were convicted and fined Z$400 each; both later left the country. IGLHRC
interview by Scott Long with attorney L. Nkomo, Webb, Low, and Barry, Bulawayo,
Zimbabwe, August 14, 2000. A constitutional challenge to the common-law
offense of sodomy was later attempted based on this case. See Appendix below.

[214]
IGLHRC interview by Kagendo, with Gideon Duma Boko, Lecturer in Law, University
of Botswana, November 9, 2000; and "Applicant's Heads of Argument," High Court
of Botswana at Francistown, in the matter between Utjiwa K. and the state (no
date or case no.). For further information on the constitutional aspects of the
case, see Appendix below.

[215]
Cited in e-mail to Scott Long from Maureen Akena, Ditshwanelo, September 16,
2002.

[216]
All citations are from the case file and trial transcript obtained by IGLHRC:
Case no. IB/535 of 1998, in the Subordinate Court of the First Class for the
Kabwe District, "The People v Emmanuel Sikombe." The transcript was hastily
typed; errors in the citations are in the original.

[217]
Despite their recorded ages both are repeatedly referred to as "boys" in court
records. Mokoma is also identified in the transcript as "Lukamba Lukopa,"
apparently a misprint.

[218]
Throughout the process Sikombe was represented by a public advocate from the
Kabwe Legal Aid Society.

[219]
See Appendix for details of the interpretation of "carnal knowledge . . .
against the order of nature" and other provisions in Zambian law.

[220]"Unnatural offences" are a complex of crimes
in Roman-Dutch common law (which is not in force in Zambia), covering non-anal
homosexual acts. Section 156 of the Zambian Penal Code, however, criminalizes
only the attempt to commit "carnal knowledge" or anal sex. Prosecutors appear
to have treated oral sex as though it were an attempt at anal sex.

[221]
As explained in the Appendix, "gross indecency" is a Zambian inheritance from
nineteenth-century British law, where it was meant to criminalize oral rather
than anal sex. What is notable is the succession of false starts necessary
before the police found a charge corresponding to the act. Meanwhile, the
sentence Sikombe faced was thus reduced from seven to five years.

[222]
Mokoma claimed Sikombe sucked his penis twice during the night. Sikombe
continued to deny the charges, saying, according to the court transcript,
"Anyone can accuse any one for the purpose of obtaining money." The three men¾Mokoma, Sikombe, and Bornwell Sinkupe¾had slept in the same bed that night;
Sinkupe testified that he had seen nothing happen: the transcript records him
as saying, apparently to the accused, "I have spent nights with you before this
incident. Nothing of this before happened to me."

[226]
E-mail communication from Goddard to Scott Long, IGLHRC, August 25, 2002.
Prior to 2001, when Zimbabwe finally revised its legislation, a man accused of
raping another man was not charged with rape-which was restricted to
penis-vagina penetration-but with "sodomy," a crime which made no distinction
between forcible and consensual commission. The result, Goddard contends, was
that people accused of "sodomy" tended to be categorized in the public
imagination with rapists as a class. Legal change has not resulted in the
shifting of this stigma.

[259]
Human Rights Watch interview with Genevieve (not real name), Windhoek, Namibia,
July 18, 2001. Although schools traditionally have had significant latitude to
control student dress, including requiring that students wear school uniforms,
they may not punish students merely for breaching stereotypes controlling how
girls and boys should dress¾for wearing
the school uniform designated for the opposite sex, for example. Article 5 of
the Convention on the Elimination of All Forms of Discrimination against Women
mandates states "To modify the social and cultural
patterns of conduct of men and women, with a view to achieving the elimination
of prejudices and customary and all other practices which are based … on
stereotyped roles for men and women."

[268]
Quoted in Crispin Inambao, "Prisoners Should Not Be Condemned to AIDS
Sentence," Africa News Service, June 15, 1998.

[269]
IGLHRC interview by Scott Long with Michaela Hubschle, deputy minister of
prisons and correctional services, Windhoek, Namibia, December 17, 1998. This
was not the last warning that Hubschle faced apparently from someone within
SWAPO. The next year, when she stated publicly that officials "responsible for
torture must be immediately suspended from their duties and stand trial," the Namibian
received a letter to the editor accusing Hubschle of echoing statements by
human rights leader Phil ya Nangoloh, and urging her to resign for
"collaboration with the enemies of our struggle for freedom and independence."
The letter was hand-delivered to the Namibian in a government envelope.
See "Call for Michaela Hubschle to resign," Namibian, September 17,
1999.

[286]
According to Keith Goddard, programmes manager of GALZ, the term also means
someone believed to have both sets of sexual organs. E-mail communication from
Goddard to Scott Long, Human Rights Watch, October 8, 2002.

[291]
"Tsitsi Tiripano Report on the incident that took place in Marondera," quoted
in Submission from the Gays and Lesbians of Zimbabwe (GALZ) to the World
Conference Against Racism, 2001. On file with Human Rights Watch.

[294]
"Tsisti Tiripano Report on the incident that took place in Marondera," quoted
in Submission from the Gays and Lesbians of Zimbabwe (GALZ) to the World
Conference Against Racism, 2001. On file with Human Rights Watch.

[301]
A letter to commission president, Eddison Zvobgo, requesting a seat, presented
on the first day on which the commission received communications from the
public, got no reply. IGLHRC interview by Scott Long with Keith Goddard, GALZ,
Harare, Zimbabwe, August 4, 2000; and "Mugabe Constitutional Comission ignores
gay plea," SAPA-DPA, June 28, 1999. In the end the draft constitutional
concentrated still more powers in the presidency, and expanded the government's
authority to expropriate property. The opposition Movement for Democratic
Change (MDC) and the National Constitutional Assembly (NCA), a civil society
coalition, both campaigned for its rejection in a referendum in early 2000.
The government lost the vote-a major shock to the regime, and one which
increased its determination to employ intimidation and, if necessary, fraud in
parliamentary and presidential elections that followed.

[307]
IGLHRC interview by Scott Long with Paul, Harare, Zimbabwe, August 4, 2001.
Even relatively sympathetic approaches to homosexuality in Zimbabwe tend still
to paint it as a phenomenon external to "tradition" or the country's identity.
A text on transforming traditional cultural practices, approved for use in
universities and teacher training colleges by the Zimbabwe Ministry of
Education, devotes a page to homosexuality after a long, ambivalent discussion
of bridewealth and a short condemnation of rape:

There is another
aspect of contemporary sexual behaviour which is said to be not traditionally
African, that is, homosexual behaviour. People often say that homosexuality is
not a problem in African societies: it is taboo even to talk about it.
Nevertheless, there are some new situations in which homosexual practices have
become widespread.

One relates to
the old colonial situation in which thousands of immigrant workers in towns and
mines were crowded together in hostels, away from their families. In such
situations, many men find compensation for the absence of family life in
homosexual practices. Secondly, in prisons where men or women are confined
together without company of the opposite sex, homosexual practices have
developed in Zimbabwe as elsewhere in the world. Thirdly, homeless boys and
young men on the city streets live and sleep together, with little opportunity
to attract the affections of girls. Such boys and men frequently indulge in
homosexual practices.

In these cases,
we find homosexual practices developing in opposition to traditional cultural
values because of the particular circumstances in which young men find
themselves.

The ultimate conclusion is more tolerant than the
government, which¾perhaps unwittingly¾endorsed the text, might prefer: "With the
increasing prevalence of such practices, the cultural values change. People
who perform homosexual acts no longer regard them with the horror that the
culture demands…. As elsewhere in the world, and as happened with extra-marital
sex, we can expect social antagonism to homosexuality slowly to erode."
However, the text still identifies homosexual conduct not only as external to
"traditional culture" (and it is worth noting that "culture" itself is earlier
sweepingly defined as "everything that we learn in our society") but as allied
with forces that unravel society, whether with crime, with the economic
disruption of colonialism, or with the social as well as economic catastrophes
that leave men and children homeless. Homosexuality is portrayed as something
which men (primarily: women are mentioned only in prisons) practice only in
"new situations"-indeed, only in extraordinary ones. M.F.C. Bourdillon, Where
Are the Ancestors? Changing Culture in Zimbabwe (Harare: University of
Zimbabwe, 1997), p. 43.

[316]
IGLHRC interview by Scott Long with Musonda Chitalu, Lusaka, Zambia, July 26,
2000; he used almost the same language when interviewed in Goodson Machona,
"Janet seeks sex change," Post, Zambia, July 23, 1998.

[320]
Vincent Zulu, "The story of Janet, the woman with a man's body," Times of
Zambia, June 30, 1996.

[321]
IGLHRC interview by Scott Long with Musonda Chitalu, Lusaka, Zambia, July 26,
2000. It is astonishing that the Zambian court was willing to change Chitalu's
registered sex and identity papers without his first having had sex
reassignment surgery; many countries refuse to take this step even for
post-operative transsexuals. See IGLHRC's Action Alert, "Rights for Ransom: Act
Now to Defend Transgender Rights in Proposed Law," December 7, 2001, at
www.iglhrc.org/world/w_eur/Spain2001Dec.htm, for a statement on the
consequences of this refusal, as well as on the rights of pre- as well as
post-operative transgender people to have their identities recognized before
the law. (Importantly, however, a 2002 ruling by the European Court of Human
Rights in Goodwin v United Kingdom held that the refusal to change the
identity papers of a post-operative transsexual violated protection for privacy
and the right to marry and found a family in the European Convention.) In
Chitalu's case, the readiness of the court to recognize in law Chitalu's own
gender identification is laudable, but in all likelihood has less to do with an
inclusive legal understanding of gender issues than with confusion in the face
of an unprecedented case not anticipated in existing provisions.

[322]
It can thus encompass people born with so-called ambiguous genitalia-for
instance, a clitoris that is viewed by a doctor as too large or a penis that is
perceived as too small-as well as people with sex chromosome variations or
other conditions. For more information on intersex people, and on the medical
abuses to which they are subjected in Western countries in the name of
"correcting" their conditions-which can include surgical mutilation or removal
of "ambiguous" genitalia-see the website of the Intersex Society of North
America, which also accesses a number of international links, at www.isna.org.

[323]
IGLHRC interview by Scott Long with Musonda Chitalu, Lusaka, Zambia, July 26,
2000. Chitalu says that the doctor who defined him as a "hermaphrodite" told
him that his hormones were "fully in the male range" and that he had "male
chromosomes." It is not certain that these opinions reflected the result of
testing. "With me the condition is a bit advanced because of my age, so they
said," Chitalu also remarked.

[324]
IGLHRC interview by Scott Long with Musonda Chitalu, Lusaka, Zambia, July 26,
2000. The Post article about Chitalu was written by the same reporter
who had interviewed Francis Chisambisha, and appeared only nine days later; the
reporter evidently contacted Chitalu in the hopes of extending or expanding his
scandalous gay "scoop."

[337]
GALZ, "Letter of Complaint from GALZ to Chief Magistrate," January 28, 1999.
Magistrate Musabanya cited judicial privilege in responding that the complaint
was "irregular"; the chief magistrate, in a letter to GALZ dated March 9, 1999,
acknowledged that "your point was well made and well driven home," but declined
to discipline or reprimand the magistrate.

[341]
The Zimbabwe Liberation War Veterans Association (WVA) association was formed
in 1989 to lobby for increased government assistance to veterans of the chimurenga
or struggle against white rule. An alliance between the government and one
section of the WVA led to the veterans' being used to spearhead the occupations
of white farmland that began in early 2000, following the government's defeat
in a referendum on a new constitution. Increasingly the government has
mobilized bands of young men to carry out similar occupations and to intimidate
opposition members: although these informal militia are mostly composed of
people far too young to have fought in the 1970s, they are still popularly referred
to as "war veterans." See "Fast Track Land Reform in Zimbabwe," Human Rights
Watch Short Report (New York: Human Rights Watch, February 2002).

[371]
Human Rights Watch interview with Isabel (not real name), July 18, 2001. IGLHRC
and Human Rights Watch are concerned by sexual relationships which involve the
potential for abuse of power, and urge states and institutions to enact
safeguards which do not discriminate between same-sex and heterosexual
activity.

[372]
IGLHRC interview by Scott Long with a Catholic priest who wished to remain
anonymous, Lusaka, Zambia, December 4, 1998.

[373]
Some such groups are evincing interest in Africa for the first time. Some,
indeed, may have been freed to do so by the fall of the apartheid regime in
South Africa, which many U.S. fundamentalist groups had supported-a support
which would at the time have severely impeded their outreach to blacks in South
Africa or elsewhere in the continent.

[374]
"Ex-gay ministry soars in South Africa," Exodus International Update, November
1996.

[375]
"A life-changing trip to Africa," and "Blazing a trail of freedom in Christ," Exodus
International Update, May 1999.

[380]
IGLHRC interview by Scott Long with Father Richard Chance, Gaborone, Botswana,
December 19, 1998.

[381]
There were indications that funds from non-Anglican U.S. fundamentalist groups
had been used to support the African position, and conservative stances more
generally, at the Lambeth conference. See David Harris, "Lambeth Analysis," Anglican
Journal (Anglican Church of Canada), September 1998,
http://www.anglicanjournal.com/124/07/-lambeth01.html, retrieved August 24,
2002.

[382]
IGLHRC interview by Scott Long with Reverend Roger Key, dean of the Anglican
Church, Windhoek, Namibia, December 16, 1998.

[392]
Quoted in Siphanbaniso Dube, "Gays spark row at funeral," Sunday News, Bulawayo,
November 7, 1999. See also, "Gay man shocks family," Daily News, November
12, 1999. However, others were shocked instead by the family's intolerance.
The independent press ran several unsually sympathetic articles, including a
front-page interview with Mondhlani: "Gay to fight for rights," Daily News, November
13, 1999. Mondhlani, a state employee-he had worked for the University of
Zimbabwe and for the National Railways of Zimbabwe-had been a GALZ member from
early on, but had dropped out of the organization as it became more visible and
political. The interview, which appeared in the country's only independent
daily, painted or was edited to paint a relatively bright picture of gay lives
in Zimbabwe: Mondhlani actually was quoted as saying that "Mugabe is our
inspiration. His sacrifice during the liberation is what is inspiring us to
fight for our cause." He also said that he believed "Mugabe's personal views
are tolerant." Yet he also spoke out as a gay professional man, one who had
had a long-term relationship with another man: to hear that voice was immensely
significant in Zimbabwe.

[416]Satchwell v the President of South Africa and another, case no.
CCT45/01.

[417]Van Rooyen v Van Rooyen 1994 (2) SA 325 (W)A, Witwatersrand Local
Division, case no. 22547/92. The ruling also found, however, that the
lifestyle could present a "danger" to minor children and forbade the mother
from sharing a bedroom with her partner while the child was in the house. This
determination would likely be found discriminatory today. This and other
decisions were significant, but (unlike De Vos v Minister of Welfare, below)
mostly unreported-meaning they did not establish precedents throughout the
judicial system.

[421]
See Shadrack B. O. Gutto, Equality and Non-Discrimination in South Africa:
The Political Economy of Law and Law Making (Cape Town: New Africa
Education, 2001), for a detailed discussion of the act, its strengths and
limitations.

[422]
It appears that the confusion of present law does not stipulate an age of
consent for women having sex with women.

[423]
The commission, a body appointed by the chief justice of the Constitutional
Court, and mostly composed of jurists and legal academics, develops discussion
papers offering legislative proposals for Parliament's consideration.

[424]See, minutes of the briefing by the the South African Law Commission to
the Parliamentary Joint Monitoring Committee on Improvement of Quality of Life
and Status of Women, October 18, 2002, at www.pmg.org.za,
retrieved October 25, 2002. See also, the South African Law Commission
website at www.server.law.wits.ac.za/salc/.

[425]
IGLHRC interview by Scott Long with Mike Waters, Johannesburg, South Africa,
November 23, 2001.

[426]
The very identity of its constituent communities is a politically contested
issue in South Africa. In this chapter, in accordance with prevailing usage in
South Africa, Human Rights Watch and IGLHRC will use "black" to refer to all
three subcategories of those not previously designated "white" in South Africa,
including those of African or Indian ancestry as well as those of mixed race.
"African" will be used to refer specifically to those of African ancestry and
"coloured" for those of mixed race. However, some informants quoted employed
the term "black" exclusively to mean those of African ancestry.

[451]
See Violence Against Women in South Africa: State Response to Domestic
Violence and Rape (New York: Human Rights Watch, 1995), South Africa:
Violence Against Women and the Medico-Legal System (New York: Human Rights
Watch, 1997), and South Africa: The State Response to Scared at School:
Sexual Violence Against Girls in South African Schools (New York: Human
Rights Watch, 2001).

[452]
For other, comparable shortcomings of SAPS's crime statistics, see Unequal
Protection: The State Response to Violent Crime on South African Farms (New
York: Human Rights Watch, 2001), pp. 140-143. SAPS's collection and analysis
of statistical data have been widely faulted. After developing a new "crime
code" list in the 1990s SAPS was slow to implement it, and the codes it
contained did not correspond to legal requirements for the collection of data
at local stations: for instance the Domestic Violence Act (Act 116/1998)
obliged police to collect domestic violence reports, but in the absence of a
crime code those went unreflected in centrally collated statistics. SAPS
actually suspended publishing its crime statistics for a period in 2000, on the
grounds that they were inconsistently collected (see Gavin Stewart, "Tshwete
promises to publish statistics," Dispatch, September 1, 2000).
Publication was later resumed¾though it
is not clear that data collection has significantly been rectified¾but since then statistics have only offered
estimated rates per 100,000 of population without giving absolute numbers.

[454]
IGLHRC interview by Kagendo with Joyce, Johannesburg, South Africa, November
23, 2001.

[455]
Des'ree, in a Human Rights Watch interview with members of the Triangle
Project's Black Lesbian Support Group, Gugulethu, South Africa, August 3, 2001.

[456]Human
Rights Watch interview with members of Triangle Project's Black Lesbian Support
Group, Gugulethu, South Africa, August 3, 2001. Many complaints about state
failure adequately to prepare criminal justice personnel have arisen in the
implementation of the Domestic Violence Act (DVA) since its 1998 passage. One
independent study determined that "there is no movement within the government
to bolster the DVA by providing resources and training," and found an "alarming
lack of infrastructure and resources within the system" as well as
"demotivated, untrained and frustrated law enforcement personnel." The study
concluded that "the Domestic Violence Act is inaccessible to many people," an
inaccessibility only compounded for those already disposed to mistrust criminal
justice processes. See Penny Parenzee, Lillian Artz, and Kelley Moult, Monitoring
the Implementation of the Domestic Violence Act: First Research Report
2000-2001, based on research conducted by the Consortium on Violence
Against Women (Institute of Criminology, University of Cape Town; Gender
Project, Community Law Centre, University of the Western Cape; and Rape Crisis
Cape Town), 2001, pp. 105-113.

[468]
See Glen Retief, Policing the Perverts: an exploratory investigation of the
nature and social impact of police action towards gay and bisexual men in South
Africa, research report submitted to the Institute of Criminology at the
University of Cape Town and to the Human Sciences Research Council, March 1993.

[487]
IGLHRC interview by Scott Long with Wendy Isaack, Equality Project,
Johannesburg, South Africa, November 21, 2001. The United Nations Standard
Minimum Rules for the Treatment of Prisoners state (Art. 8A) that "Men and women shall so far as possible be detained in
separate institutions; in an institution which receives both men and women the
whole of the premises allocated to women shall be entirely separate." Inasmuch
as one evident purpose of the rule is to prevent sexual abuse of women¾and
biological males who identify as women are likely to be particular targets for
sexual and physical abuse¾placing pre- or post-operative transgender people with
prisoners of their own birth sex may place them in grave danger. However, the
needs of pre-operative transgender people can still present complex problems
for prison authorities. It is clear that placing transgender people, for their
own "protection," in an environment ordinarily reserved to punish disciplinary
infractions is an unacceptable solution¾one also prohibited by the Standard
Minimum Rules, which state (Art. 30) that no prisoner shall be punished except
for a stipulated disciplinary offence. It is incumbent upon South African
authorities to develop protocols for the protection of transgender and other
vulnerable prisoners, to ensure their full safety through measures which are
non-punitive and do not entail social isolation. These protocols should be
developed in consultation with lesbian, gay, bisexual, and transgender groups.

[489]
This long-standing medical practice in South Africa has had negative
consequences as well. In a particularly gruesome revelation of
previously-hidden apartheid-era practices, the press revealed and the
government acknowledged in 2000 that the South African Defence Force (SADF) had
carried out a "sexual realignment programme" prior to 1994. From the 1970s
until an unknown date in the 1980s or 1990s, SADF members who were identified
as lesbian or gay were subjected to aversion therapy-electroshock treatment
designed to alter their sexual orientation, and amounting to torture-as well as
medical experimentation. In some cases, gay men were reportedly forced to
undergo chemical castration, and lesbians and gay men were compelled to undergo
sex reassignment surgery. In at least one case reported to the Equality
Project, initial surgical removal of a person's genitalia was undertaken;
however, hormone therapy was afterwards suspended, leaving the person in a
humiliating limbo of contradictory sex and gender identity. Suicides
reportedly resulted. One of the doctors responsible for the program is
reportedly now resident in Canada. The Equality Project has requested the
minister of defence to appoint a commission of inquiry; no definite answer has
yet been forthcoming. IGLHRC interviews by Scott Long with Carrie Shelver,
Johannesburg, South Africa, August 18, 2000, and with Evert Knoesen,
Johannesburg, South Africa, November 21, 2001. See also, "Request for
the Appointment of a Commission of Inquiry" from the Equality Project to
Minister of Defence Mosuia Patrick Gerard Lekota, August 14, 2000, as well as
confidential transcripts of interviews with program survivors, on file with
IGLHRC.

[490]
IGLHRC interview by Scott Long with Evert Knoesen, Johannesburg, South Africa,
November 21, 2001.

[491]For
an account of some of the consequences of disparity between apparent gender and
legally recorded sex, see IGLHRC's report, "The Rights of Transvestites in
Argentina," by Lohana Berkins, Scott Long, and Alejandra Sarda, at
http://www.iglhrc.org/news/factsheets/Argentina_trans.html.

[492]Wendy Isaack, for instance, observes that "Many
transgender people are abused or raped in their communities. Many work as sex
workers and are exposed to rape by clients or street thugs. And the law won't
say it is rape." IGLHRC interview by Scott Long with Wendy Isaack,
Johannesburg, South Africa, November 21, 2001.

[522]
The government had contested the possible application of the ruling to
unmarried heterosexual couples, fearing the possible financial consequences of
a general extension of benefits to such couples. The Constitutional Court
ruling held only that the relevant Acts should be amended to include same-sex
couples, and that such differentiation between married couples and same-sex
couples was unconstitutional.

[523]
IGLHRC interview by Scott Long with Carrie Shelver, Equality Project, New York,
United States, September 3, 2001.

[524]
IGLHRC interview by Scott Long with Evert Knoesen, Johannesburg, South Africa,
November 21, 2001.

[533]
IGLHRC interview by Scott Long with Evert Knoesen, Johannesburg, South Africa,
November 21, 2001. For a discussion of customary law and marriage, see the
Appendix. Knoesen points to possible, unexpected constitutional consequences
of the recognition of polygamy-particularly since the South African
Constitution (unlike some other constitutions in the region) does not mandate
the recognition or special status of customary practices. What happens when
the legislature does give those practices special status? Does it open claims
under the Equality Clause? Knoesen says, "As it
stands, only African marriages can be polygamous-not others. This makes no
sense: and there will be a constitutional claim that if polygamy is permitted,
it should be permitted to all communities . . . And what does that raise? The
possibility of multiple relationships, bisexual relationships for example,
being recognized." In fact, some policy statements of the South African
government seem to move toward defining "family" in broader ways which no
longer need have an exclusive, heterosexual relationship between two people at
its center-or with centers which no longer need be modelled after such a
central relationship. These new definitions might allow the inclusion not only
of "traditional" family concepts built around extended kinship relations, but
of "modern" extended networks of care. For instance, the Department of Social
Welfare, in a 1996 white paper, defined a "family" by function and not
by structure, as: "Individuals who either by contract or agreement
choose to live together intimately and function as a unit in a social and
economic system. The family is the primary social unit which ideally provides
care, nurturing and socialisation for its members. It seeks to provide them
with physical, economic, emotional, social, cultural and spiritual security."
Government Gazette No. 16493, February 2, 1996, quoted in National Coalition
for Gay and Lesbian Equality submission to the SALC, "Project 110: The Review
of the Child Care Act: Comment on the Parent-Child Relationship," April 2,
1999. This hardly requires a married, a monogamous, or even a two-person
intimate relationship to be the linchpin of a "family" as a site of economic
solidarity and care. See also IGLHRC's report, Conceiving Parenthood:
Parenting and the Rights of Lesbian, Gay, Bisexual and Transgender People and
their Children, 2000, pp. 188-90.

[534]
South African Law Commission, Issue Paper 17 (Questionnaire), Project 118,
"Domestic Partnerships," 2001. See also, "Media Statement by the South African
Law Commission Concerning Its Investigation Into Domestic Partnerships," October
5, 2001, which describes "early notions of marriage as the only form of
acceptable relationship" as outdated-apparently progressive language which
however seems aimed at making room for the state to evade its constitutional
obligation to make the status of marriage available without discrimination.
See also the submission by the Women's Legal Centre, Cape Town, which by
contrast urged extending marriage to same-sex partners, but creating a second
status of domestic partnership, open to heterosexuals as well and resembling
common-law marriage as understood in other jurisdictions, which would
retrospectively recognize unregistered relationships and accord them a
different set of rights and obligations. Lulama Nongog and Coriaan de
Villiers, "Comments to South African Law Commission Issue Paper 17
(Questionnaire)," http://www.wlce.co.za/submission18.html, retrieved August
21, 2002.

[535]
In France, for instance, the Pacte Civil de Solidarite (Civil Solidarity Pact,
or PACS), which since 2000 has recognized unmarried heterosexual as well as
homosexual relationships, maintains unequal adoption restrictions and imposes a
three-year waiting period before PACS couples can claim tax and other
benefits. Other European states which have opened forms of "domestic partnership"
to same-sex couples continue to impose discriminatory restrictions on adoption
and child custody. (However, the Netherlands ended such discrimination in 2001
by becoming the first nation in the world to open the status of civil marriage
to same-sex couples.)

[536]
For example, as noted above, the De Vos case opened joint adoption
rights to same-sex partners: High Court of South Africa, Transvaal Provincial
Division, Du Toit and De Vos v Minister of Welfare, case no. 23704/2001.

[537]
IGLHRC interview by Scott Long with Evert Knoesen, Johannesburg, South Africa,
November 21, 2001.

[550]He also accused Cameron of trying to "sanitise
homosexuality and its associated guilt trips," and of trying to persuade the
ANC to "treat HIV/AIDS differently from other diseases." Judith Soal,
"DP candidate stands by his AIDS comments," Cape Times, May 11, 1999.

[551]
The party was formed from a merger of the Democratic Party with the New
National Party, successor to the apartheid-era ruling party.

[559]
See Chapter I, above, for South Africa's position at the 1995 Fourth World
Conference on Women in Beijing.

[560]
Addendum to the "Declaration on Gender and Development" on "The Prevention and
Eradication of Violence Against Women and Children," SADC Gender Unit, "Gender
Mainstreaming at SADC: Policies, Plans, and Activities" (Botswana, 1999), para.
H.ii and H.iv. Cited in Barbara Klugman, "Sexual Rights in Southern Africa: A
Beijing Discourse or a Strategic Necessity," Harvard Journal of Health and
Human Rights, vol. 4, no. 2.

[561]
IGLHRC interview by Scott Long with Wendy Isaack, Johannesburg, South Africa,
November 21, 2001.

[562]
IGLHRC interview by Scott Long with Francis Chisambisha, Johannesburg, South
Africa, November 20, 2001. The Office of the United Nations High Commisioner
for Refugees (UNHCR) recently reaffirmed a long-standing position: "Where
homosexuality is illegal in a particular society, the imposition of severe
criminal penalties for homosexual conduct could amount to persecution, just as
it would for refusing to wear the veil by women in some societies. Even where
homosexual practices are not criminalized, a claimant could still establish a
valid claim where the State condones or tolerates discriminatory practices or
harm perpetrated against him or her, or where the State is unable to protect
effectively the claimant against such harm." See UNHCR, "Guidelines on
International Protection: Gender-Related Persecution within the context of
article 1A(2) of the 1951 Convention and its 1967 Protocol relating to the
status of refugees," UN Doc. HCR/GIP/02/01, May 7, 2002, at 17 ("Persecution on
account of one's sexual orientation").

[567]
Botswana became a party to the ICCPR on September 8, 2000. Namibia acceded to
the treaty on November 28, 1994. Zambia acceded to it on April 10, 1984, and
Zimbabwe on May 13, 1991. South African became a party to the treaty on
December 10, 1998.

[571]
Thus in Dudgeon, the Court held that laws penalizing homosexual conduct
could not be held "necessary in a democratic society":

Although members
of the public who regard homosexuality as immoral may be shocked, offended, or
disturbed by the commission by others of private homosexual acts, this cannot
on its own warrant the application of penal sanctions when it is consenting
adults alone who are involved.

In Norris, the court held that "such justifications as there are
for retaining the law in force unamended are outweighed by the detrimental
effects which the very existence of the legislative provisions can have on the
life of a person of homosexual orientation."

[577]
This article provides (similarly to articles 17, 21, and 22 of the ICCPR) that
the exercise of the rights in paragraph 2 may be "subject to certain
restrictions," which must be clearly provided for in law and necessary for
"respect of the rights or reputations of others," or to protect "national
security," "public order," or "public health and morals." In decisions
overturning sodomy laws in the United Kingdom, Ireland, and Cyprus, the European
Court of Human Rights has repeatedly held that similar provisions on public
order, morals, or health do not justify restricting the basic rights of persons
because of their sexual orientation (see above). In one early case, Hertzberg
v Finland, in 1980, the U.N. Human Rights Committee indeed rejected a
challenge to the decision of the Finnish Broadcasting Corporation to censor
programming with gay and lesbian content. This case would almost certainly be
decided differently today, in the light of Toonen. At the time, three
Committee members published a dissenting opinion stating that "It is of special
importance to protect freedom of expression as regards minority views,
including those that offend, shock or disturb the majority." (Individual opinions
by members Opsahl, Lallah, and Tarnopolsky in case no. 61/1979, UNGAOR A/37/40,
Supp. No. 40). Manfred Nowak, an authoritative commentator on the ICCPR, notes
that such a "liberal interpretation of public morals is correct… as a general
principle [if] freedom of expression and information is to fulfil its function
as one of the most important civil and political rights." He also observes
that "there can be no doubt that every communicable type of subjective idea and
opinion, of value-neutral news and information, of commercial advertising, art
works, political commentary regardless of how critical, pornography, etc., is
protected by Art. 19(2), subject to the permissible limitations in para. 3. It
is thus impossible to close out undesirable contents, such as pornography or
blasphemy, by restrictively defining the scope of protection." Manfred Nowak, CCPR
Commentary (Kehl: N.P. Engel, 1993), pp. 358 and 341.

[578]
"Report of the Special Representative to the Secretary General on human rights
defenders," UN Doc. E/CN.4/2001/94, at 89(g).

[579]"Declaration on the Right and Responsibility of
Individuals, Groups and Organs of Society to Promote and Protect Universally
Recognized Human Rights and Fundamental Freedoms," U.N. General Assembly
Resolution, A/RES/53/144, 8 March 1999.

[581]
U.N. Working Group on Arbitrary Detention, "Opinion no. 7/2002 (Egypt)", at 7
and 14-15.

[582]
The decision of the Inter-American Court of Human Rights in the case of Velásquez
Rodríguez establishes, in terms clearly applicable in other international
systems, the responsibility of states for patterns of violations committed by
private individuals. The Court mandated states to "Take reasonable steps to
prevent human rights violations and to use the means at its disposal to carry
out a serious investigation of violations committed within [its] jurisdiction,
to identify those responsible, to impose the appropriate punishment and to
ensure the victim adequate compensation": Velásquez Rodríguez v Honduras, 4
Inter. Am. Ct. HR, Ser. C, No. 4, 1988.

[583]
"Report of the Special Rapporteur on the question of torture and other cruel,
inhuman and degrading treatment or punishment," U.N. General Assembly, UN Doc.
A/56/156, 3 July 2001.

[584]
Botswana acceded to the treaty on March 14, 1995. Namibia has been a party to
the treaty since September 30, 1990, South Africa since June 16, 1995, Zambia
since December 5, 1991, and Zimbabwe since September 11, 1990.

[585]
The Committee on the Rights of the Child has, in a number of instances, called
for states to address and prevent discrimination and abuse within the family.
It has encouraged states "to launch comprehensive public education campaigns to
prevent and combat gender discrimination, particularly within the family" (emphasis
added): "Concluding Observations of the Committee on the Rights of the Child:
Uzbekistan," CRC/C/15/Add. 167, at 31. It has repeatedly called for states to
promote "respect for the views of children" in accordance with article 12 of
the Convention, noting that these views (which can clearly include the
expression of sexual orientation or gender identity) have been unjustly
restricted "owing to traditional societal attitudes . . . especially within
the family" (emphasis added; "Concluding Observations of the Committee on
the Rights of the Child: Lebanon," CRC/C/15/Add.169 at 30; see also "Concluding
Observations of the Committee on the Rights of the Child: Bahrain,"
CRC/C/15/Add.175 at 34, and "Concluding Observations of the Committee on the
Rights of the Child: Gabon," CRC/C/15/Add.171 at 27-28). The Committee has
identified the abandonment of children as a form of abuse (see "Concluding
Observations of the Committee on the Rights of the Child: Kenya,"
CRC/C/15/Add.160 at 41-42, and "Concluding Observations of the Committee on the
Rights of the Child: Tanzania," CRC/C/15/Add.156, at 44-45). In one report the
Committee "notes the establishment by the state party of a programme to
encourage the reinforcement of the family environment and to strengthen
parenting skills among both parents. The Committee remains concerned, however,
at the high rate of abandonment of children…. In this regard, the Committee
also expresses concern at the lack of adequate alternative care facilities and
qualified personnel in this field. The Committee recommends that the state
party increase its efforts to provide support, including training, for parents,
to discourage the abandonment of children." ("Concluding Observations of the
Committee on the Rights of the Child: Thailand," CRC/C/15/Add.97 at 22. In
"Concluding Observations of the Committee on the Rights of the Child: Belarus,"
CRC/C/15/Add.180, at 38, the Committee urged the state to "develop strategies
and awareness-raising activities to prevent and reduce the abandonment of
children.")

[586]
Botswana has not signed the ICESCR. Namibia acceded to the Covenant on
November 28, 1994; South Africa signed it on October 3, 1994; Zambia and
Zimbabwe acceded to it on April 10, 1984, and May 13, 1991, respectively.

[587]
Botswana acceded to the treaty on August 3, 1996, Namibia on November 23, 1992,
and Zimbabwe on May 13, 1991. South Africa has been a party since December 15,
1995, and Zambia since June 21, 1985.

[588]
"Report of the Special Rapporteur on violence against women, its causes and
consequences," UN Doc. E/CN.4/1997/47, 12 February 1997.

[589]
"Concluding Observations of the Committee on the Elimination of Discrimination
Against Women : Kyrgyzstan," Committee on the Elimination of Discrimination
against Women, 20th Session, UN Doc. A/54/38, January 27, 1999, at
127-28.

[600]
Legal systems derived ultimately from Roman law are generally known, of course,
as "civil law" systems, and distinguished from systems deriving from English
common law by giving judges only limited power to establish legal precedents.
Hence the name "Roman-Dutch common law" is on the face of it confusing. In
fact, the Roman, "civil law" component of this particular legal tradition is
relatively small. The great Netherlands jurist Hugo Grotius (1583-1645), its
key figure and authoritative compiler, in his Inleiding tot de Hollandsche
Rechsgeleertheyt (1631) largely drew on Germanic custom and practice, and
used Roman law (as one commentator says) "only when it supplied omissions and deficiencies
in the latter." (See Wille's Principles of South African Law, 8th
Edition[Cape Town: Juta, 1991], pp. 21-25.) In South Africa, however,
Roman-Dutch law has migrated still further from the usual methodology of
civil-law systems. Under the influence of British rule (since the United
Kingdom occupied the Cape Colony in 1806), and in the absence of any conclusive
metropolitan codification (since Roman-Dutch law almost immediately
afterward-in 1809¾became defunct at its
origin in the Netherlands, which adopted the Napoleonic Code) it has become
more reliant on jurisprudential precedent to establish legal norms, essentially
adopting the practice of other common-law systems. The rule of stare decisis
is in effect, and "judge-made" law is recognized.

[601]
In fact, the situation is slightly more complicated: a South African decision
in R v Harrison & Dryburgh, 1922, determined that laws enacted in
the Netherlands prior to the founding of the Cape Colony in 1652 were all
applicable in South Africa; however, those enacted in the homeland between 1652
and 1806¾during the colonial period¾were binding only if they had been formally
promulgated in the Cape Colony. A search ensued for evidence that many
quotidian laws¾taken for granted in
daily life¾had been publicly
pronounced, rather than passively accepted, while the Dutch ruled. No such
quest was called for in the case of the law against "sodomy." It was an old
Dutch law in any case: and the fact that executions for sodomy had taken place
under Table Mountain until the nineteenth century served as sanguinary proof of
promulgation.

[615]
Propotkin's unpublished paper argues that this inflection is particular to
Rhodesia/Zimbabwe, where judges of English background and training read
Roman-Dutch law through English spectacles. It seems likely, though, that
sodomy in South Africa was reinterpreted under the same unacknowledged
influence.

[617]
Quoted in Glen Retief, "Keeping Sodom Out of the Lager," in Cameron and
Gevisser, eds. Defiant Desire, p. 101.

[618]
Quoted in Retief, "Keeping Sodom Out of the Lager," in Cameron and Gevisser,
eds., Defiant Desire, p. 99.

[619]
Retief, "Keeping Sodom Out of the Lager," in Cameron and Gevisser, eds., Defiant
Desire, p. 103; see also Mark Gevisser, "A Different Fight for Freedom: A
History of South African Lesbian and Gay Organisation-the 1950s to the 1990s,"
in the same volume. And see Glen Retief, Policing the Perverts: an
exploratory investigation of the nature and social impact of police action
towards gay and bisexual men in South Africa, research report submitted to
the Institute of Criminology at the University of Cape Town and to the Human
Sciences Research Council, March 1993.

[623]S v Chikore, Zimbabwe Law Reports 1987 (2), 48 at E. The sentence was
set aside, with Justice Reynolds noting, "This offence is not prevalent in
Zimbabwe, and the donkey was not injured."

[624]
See the South African case S v Kampher, 1997, High Court of South Africa
(Cape of Good Hope Provincial Division), case no. 232/92, HCR no. 001377/97, at
21: "As far as can be discovered consensual sexual acts between females do not
constitute a crime in our common law and probably were not so regarded in the
Netherlands at the close of the eighteenth century and possibly earlier.
Certainly there is no case reported in our law reports in which a woman or
women was or were prosecuted for acts of this kind."

[625]
Masango, Criminal Law Manual, p. 106. The definition of attempt in
common law involves "conduct which a) is done or omitted with the object of
committing that crime, and b) forms part of a series of acts or omissions
which, if carried to completion, would result in the commission of that crime":
Masango, p. 56. The assumption that sexual acts intrinsically tend toward
penetration reflects, of course, the imposition of a heterosexual and
patriarchal model, and teleology, upon behavior and desire. The impulse to
subdivide sexual acts into the completed and the attempted-into a "series of
acts or omissions"-however, also reflects the growing inclination of the law
toward specifying acts and detailing sexual narratives to surround them. Both
are essential to predicating identities upon those acts-and both have been
intensifying since the general crime of "sodomy" first made its appearance.

[627]R v Masuku, Rhodesian Law Reports 1968, p. 332; seven years earlier, in
the case of R v H, Rhodesian Law Reports pp. 278-280, the judge declined
to answer the question "Can the crime of sodomy be committed with a female,"
but cited the South African case of R v N, decided the same year, as
indicating that interpretations of Roman-Dutch law there excluded heterosexual
acts from sodomy's ambit. By 1979, in S v Macheka Justice Davies held
that "it should now be regarded as settled law in this country that the crime
of sodomy is not committed when a male has intercourse per anum with a
female": Rhodesia Law Reports 1979, p. 51.

[628]S v C, Rhodesian Law Reports 1976 (1), p. 57; in consequence the judge
reduced the initial sodomy sentence of twelve months at hard labor (nine
suspended) to a $50 (Rhodesian) fine. The court also conceded that it "seems
clear that self-masturbation is not criminal. There are no reported cases
dealing with unnatural acts between consenting females. The courts may well
incline to treat such conduct as no longer criminal"- a degree of generosity
however forgotten by the time of S v Chikore in 1987, which found the
criminality of lesbian acts still an "open question" (supra).

[629]
IGLHRC interview by Scott Long with Derek Matyszak, University of Zimbabwe,
Harare, Zimbabwe, August 3, 2000; see also Oliver Phillips, "Zimbabwean Law and
the Production of a White Man's Disease," Social and Legal Studies Vol
6(4) 471-491.

[631]
IGLHRC interview by Scott Long with Derek Matyszak, University of Zimbabwe,
Harare, Zimbabwe, August 3, 2000; and Oliver Phillips, "Zimbabwean Law and the
Production of a White Man's Disease," Social and Legal Studies Vol 6(4)
471-491.

[632]See Peter Godwin and Ian Hancock, Rhodesians Never Die: The Impact of
War and Political Change on White Rhodesia, 1970-1980 (Harare: Baobab,
1993),for a treatment of the conservative, puritanical morality which
constituted the identity of the "independent" white Rhodesian State; and Ibbo
Mandaza, Race, Colour and Class in Southern Africa (Harare, 1997) for an
extended study of sex across racial lines in colonial Rhodesia, which (unlike
apartheid South Africa) adopted a strategy of moral marginalization rather than
criminalization to address the "problem."

[633]S v Roffey, Zimbabwean Law Reports 1991 (2), p. 47. At the time this
would have been a substantial sum.

[634]
IGLHRC interview by Scott Long with Derek Matyszak, University of Zimbabwe,
August 3, 2000. This would have been equivalent to U.S.$10-15 at the time,
and still a significant sum for most Zimbabweans. Whether court fines keep pace
with the severe, recent inflationary pressures in Zimbabwe is not clear.

[635]
Oliver Phillips, "Zimbabwean Law and the Production of a White Man's Disease" Social
and Legal Studies Vol 6(4) 471-491; also e-mail communication from Keith
Goddard to Scott Long, IGLHRC, August 23, 2002.

[636]
The name, a corruption of "Bulgars," apparently derived from an early medieval
heresy centered in the Balkans, and believed to condone homosexual conduct.

[637]
Sydney Malupande, Human Rights in Zambia: Freedom of Sexual Orientation,
Homosexual Law Reform, thesis submitted in partial fulfilment of the
requirements for the LLB degree, University of Zambia School of Law, April
2000.

[639]
Gideon Duma Boko, "The Case For Decriminalization of Voluntary Homosexual
Conduct in Botswana," Paper presented at the Conference on Human Rights and
Democracy in Botswana, November 17-19, 1998. Section 10 (8) of Botswana's
Constitution requires that "No person shall be convicted of a criminal offence
unless that offence is defined and the penalty therefor is prescribed in a
written law."

[645]
See Public Scandals: Sexual Orientation and Criminal Law in Romania (New
York: Human Rights Watch and IGLHRC, 1998), p. 10. In Egypt, for
example, consensual (and non-commercial) homosexual conduct is criminalized in
law through the expansive interpretation of provisions originally targeting
prostitution. Police roundups and criminal prosecutions of people accused of
homosexual acts have taken place-in growing numbers-under a provision of a 1961
law on prostitution, which penalizes consensual sexual conduct between males as
"debauchery."

[646]
In S v Jordan (Constitutional Court of South Africa, Case CCT 31/01),
decided late in 2002, the Constitutional Court upheld the prohibition of
commercial sex work, rejecting the contention that the relevant provisions of
the Sexual Offences Act violated constitutional protections for human dignity,
freedom of the person, privacy, and economic activity.

[647]
Sex Worker Education and Advocacy Taskforce, fact sheet, "The reality of
working in a criminalised industry," at http://www.sweat.org.za, retrieved
August 22, 2002.

[648]
See, for an overview of such impediments, Human Rights Watch's reports Violence
Against Women in South Africa: State Response to Domestic Violence and Rape (New
York: Human Rights Watch, 1995), and Scared at School: Sexual Violence
against Girls in South African Schools (New York: Human Rights Watch,
2001).

[649]
In both Zambia and Botswana rape appears under the Penal Code as an "offence
against morality"-not against the person of the victim. Section 132 of
Zambia's Code represents the core, colonial text: "Any person who has unlawful
carnal knowledge of a woman or girl, without her consent, or with her consent,
if the consent is obtained by force of means of threats or intimidation of any
kind, or by fear of bodily harm, or by means of false representations as to the
nature of the act, or, in the case of a married woman, by personating her
husband, is guilty of the felony termed 'rape.'" Sections 133 and 134 make both
rape and attempted rape punishable by life imprisonment; 137 punishes "indecent
assault" on a woman or girl, with consent no defense if the girl is under twelve.
Section 138 establishes an age of consent for women only: "Any person who
unlawfully and carnally knows any girl under the age of sixteen years is guilty
of a felony and is liable to imprisonment for life." Botswana's provisions
were virtually identical until the 1998 Penal Code (Amendment) Act rendered
them gender-neutral.

[650]
Section 5 of the Act reads, "Notwithstanding anything to the contrary
contained in any law or in the common law, a husband may be convicted for the
rape of his wife."

·penetrates any part of the body of the female by means of the
male organ;

·penetrates the genitalia or anus of the female by means of any
object, other than male organ;

·engages in cunnilingus or fellatio with the female;

¾without the consent of the male concerned-

·penetrates any part of the body of the male by means of the male
organ;

·penetrates the anus of the male by means of any object, other
than the male organ;

·performs fellatio with the male;

shall be
guilty of rape and liable for imprisonment for life.

The final
provision passed in 2001 read:

1.Any person who, whether or not married
to the other person, without the consent of that person-

a.with the male organ, penetrates any
part of the other person's body; or

b.with any object other than the male
organ, penetrates the other person's genitalia or anus; or

c.engages in fellatio or cunnilingus with
the other person;

shall be guilty of an offence and liable, subject to
section sixteen, to the penalties provided by law for rape.

2.Penetration to any degree shall be
sufficient for the purpose of paragraphs (a) and (b) of subsection (1).

The difference shows a progressively expanding
understanding of rape: the criminalization of marital rape is made explicit in
the final version. What differs significantly is the reference to "section
sixteen"-which provides additional penalties for the transmission of HIV.

[655]
The Botswanan human rights organization Ditshwanelo points out that, even
before the reform, the meaning of the term in the rape provisions of the Penal
Code conflicted with its meaning in Section 164 (the provision penalizing
homosexual acts), where it was generally taken to mean anal penetration. The
new law expands the meaning of "carnal knowledge" implicitly but still offers
nothing to define it. Ditshwanelo observes, "There is generally a lack of clear
definition of the various sexual offences due to the fact that terms with vague
meaning such as 'carnal knowledge' and 'carnal connexion' are used to describe
these offences." From "Ditshwanelo Discussion Document on the Penal Code
(Amendment) Act No. 5 of 1998," unpublished; IGLHRC interview by Scott Long
with Alice Mogwe, Ditshwanelo, Gaborone, Botswana, December 21, 1998.

[656]
Section 137, Zambian Penal Code. It carries a sentence of fourteen years'
imprisonment, as opposed to life imprisonment for rape.

[658]
Law Development Commission, Zimbabwe, Report No. 63: December 1997, p. 6
(emphasis added). The Commission indeed went out of its way to defend the
criminalization of sodomy. South African authorities, they admit (p. 18),
"remark that the view that sodomy is morally wrong no longer enjoys universal
support and there is increasingly recognition for the view that sodomy between
consenting adults ought to be decriminalized. This however is apparently not
the view of the majority of the population in Zimbabwe … Retention of the crime
as part of our common law is therefore recommended by the Commission."

[663]Propotkin,
unpublished paper, p. 23, One famous case illustrates many of these
ambiguities. On February 24, 1997 a man named Jefta Dube was convicted of
murdering a policeman in Harare. He claimed he had been taunted by his victim,
accused of being "Banana's wife"-a reference to Canaan Banana, the first
post-independence president of Zimbabwe. Dube alleged he had been subjected to
repeated sexual abuse by Banana over a three-year period.

Police began investigating Banana, and at least nine other
alleged victims came forward. Eventually-in a case that scandalized the
country and the region-Banana was tried and convicted in the High Court in
Harare. He appealed his case to the Supreme Court, which upheld his conviction
on one count of sodomy; seven counts of indecent assault against various
persons; one account of committing "numerous unnatural sexual offences" upon
Jefta Dube; and two counts of assault.

The sentences on the sexual-offences counts are instructive.

·The count of sodomy entailed an act of anal sex, which the courts
believed consensual (the courts disbelieved the complainant's assertion that he
"did not consent to such acts, but submitted through fear"; on the other hand,
the courts also disbelieved the assertion that he was the active partner, while
Banana was passive). Banana was sentenced to one month's imprisonment,
suspended.

·The counts of indecent assault entailed acts committed against
seven different people. In six cases the pattern is uniform: the complainant
was invited to Banana's office; Banana began playing music and invited the
person to dance; "[Banana]'s penis became erect": the complainant them "broke away
and left the office." In one other case, where Banana allegedly actually
ejaculated between the complainant's legs, the charge was initially attempted
sodomy, but Banana was convicted of indecent assault in the end. For all these
counts, Banana received a total of two years' imprisonment, one of which was
suspended.

·The count of "numerous unnatural sexual offences" against Jefta
Dube had originated as charges of sodomy and attempted sodomy, on which Banana
was convicted by the High Court; the Supreme Court reduced the sodomy
conviction to one for attempt (and the attempted sodomy conviction to "indecent
assault"). The facts revealed how confused legal professionals are about their
terminologies for sexual acts-and how doubly confusing laymen find the words.
Jefta Dube, untrained in Roman-Dutch law, had insisted he was "sodomised" by
Banana, but the court found that Banana had actually ejaculated between his
thighs, and that "the complainant [erroneously] believed that the latter acts
amounted to sodomy." Five years' imprisonment was imposed on Banana, of which
four were suspended, and a substantial fine was levied.

The case generally exhibits the painful difficulty of
Zimbabwean law in coming up with a consistent legal categorization of sexual
acts. Is non-penetrative homosexual sex an attempt at sodomy, or is it an
"unnatural offence," or "indecent assault?" More than that, though, the case
shows how the rough existing categorization made consent effectively an
irrelevant issue in evaluating male-male sexual acts. Consent was only
considered in judging the one sodomy count-and even there was presumably only
weighed in sentencing, as under existing law it could not have affected the
determination of a crime. In the remaining counts, although all the defendants
charged abuse, the question of consent was formally moot, was disregarded by
the High Court, and was considered by the Supreme Court only implicitly in
changing "attempted sodomy" to "indecent assault." (That "attempted sodomy"
should bring a higher penalty than sodomy itself indicates the inability of the
law to come to terms with issues of consent. It is worth noting as well that,
prior to the 2001 criminalization of marital rape, a wife could not see her
husband charged with rape after forced penetrative intercourse¾but could charge him with indecent assault
after unwanted, non-penetrative touching. R v Gumede, 1946, cited in
Clemence Masango, Criminal Law Manual, pp. 156-7.) In the end, with his
several sentences imposed concurrently, Banana received only one year in
prison. See Canaan Sodindo Banaan v the State, Judgment No. SC 41/2000,
Crim. Appeal No. 12/99.

(1)Any person who, having actual knowledge
that he is infected with HIV, intentionally does anything or permits the doing
of anything which he knows or ought reasonably to know:

a.will infect another person with HIV; or

b.is likely to lead to another person
becoming infected with HIV; shall be guilty of an offence, whether or not he is
married to that other person, and shall be liable to imprisonment for a period
not exceeding twenty years.

The provision does allow as a defence
evidence "that the other person concerned

a.knew that the person charged was
infected with HIV; and

b.consented to the act in question,
appreciating the nature of HIV and the possibility of his becoming infected
with it."

However, the provision does not indicate whether taking
safer-sex precautions legally mitigates the "likelihood" of transmission.
Moreover, it criminalizes any act which might lead to transmission,
whether or not it does, and imposes the same penalty upon it. Derek Matyszak,
of the University of Zimbabwe, has pointed out that the twenty-year sentence is
largely symbolic: most HIV-positive persons, jailed without treatment, would
die long before the sentence was served.

[666]
Section 16, "Sentence for certain offences where offender is infected with
HIV," reads in part:

Where a person is convicted of

a.rape or sodomy . . .and it is proved that, at the time of the offence,
the convicted person was infected with HIV, whether or not he was aware of his
infection, he shall be sentenced to imprisonment for
a period not exceeding twenty years.

[667]
Mahmood Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of
Late Colonialism (Princeton: Princeton University Press, 2000).

[668]
This amounted to 47 percent of the land of Rhodesia, by the Land
Apportionment Act of 1930; a mere 13 percent of the land of South Africa was
left to "Bantu" by the Natives Land Act of 1913.

[670]
In fact, polygyny may have been in decline in most Southern African societies
even before colonial occupation; and the encroachments of a cash economy under
colonialism certainly ensured that few African men would be able to afford
multiple wives.

[671]
Seymour, Native Law in South Africa, p. 15. This was only a very late
formulation of a long-standing colonial principle. Natal, the first province to
recognize customary law, declared in 1849 that it did so "so far as it was not
repugnant to the general principles of humanity observed throughout the
civilized world": T. W. Bennett, Application of Customary Law in Southern
Africa (Cape Town: Juta, 1985), p. 43. Similarly, the 1889 Charter of the
British South Africa Company (which became the first charter law of Southern
Rhodesia) stated that "native law" should apply in civil disputes between
natives, but only if that law was "not repugnant to natural justice or
morality": see Oliver Phillips, "Zimbabwean Law and the Production of a White
Man's Disease," Social and Legal Studies Vol. 6 (4), 471-91.

[673]
South African customary law, for instance-in large part importing from
Roman-Dutch law the concept that a married woman lay under her husband's
wardship-made women in customary marriages perpetual minors.

[674]
See Oliver Phillips, "Zimbabwean Law and the Production of a White Man's
Disease," Social and Legal Studies Vol. 6 (4), 471-91.

[675]
See AfroNet report, "The Dilemma of Local Courts in Zambia: A Question of Colonial Legal Continuity

[676]
In Botswana, by some estimates, 70-80 percent of legal cases are heard in
customary courts: see International Development Research Centre, "Traditional
Leaders and the Botswana Judiciary," August 2001. See also Jennifer Widmer,
"Courts and Democracy in Post-Conflict Transitions: A Social Scientist's
Perspective on the African Case," American Journal of International Law, Vol.
95, pp. 64-75. For the Zimbabwean situation, see C. R. Cutshall, Justice
for the People: Community Courts and Legal Transformation in Zimbabwe (Harare:
University of Zimbabwe,1991).

[677]
Bashi Letsididi, "Prison 'Lovers' Found Guilty of Illegal Sex," The
Reporter, December 19-23, 1997. In the most recent case described, two
prisoners had been engaging in what the article calls a "blissful… behind-bars
romance"; one was unfaithful, and the other retaliated by assaulting him. The
peculiar language of the article actually suggests, however, that the case may
have reached customary courts because the lovers saw themselves as married. "A
measure of comfort for the lovers is that the Mahalapye customary court did not
consider spousal abuse… and adultery… but stuck to the legal charge of engaging
in unnatural offences."

[678]
Kgosi Christopher Masunga, quoted in Billy Kokorwe, "Whip Them or Jail Them:
Kgosi Seepapitso's View on Homosexuals," Midweek Sun, Botswana, June 17,
1998. One of the four traditional leaders "polled" by the newspaper urged that
homosexuals' rights be recognized, however.

[679]
For a critique of the compromise with "culture" in the 1998 Act, see
Thandabantu Nhlapo, "The African Customary Law of Marriage and the Rights
Conundrum," in Mahmood Mamdani, ed., Beyond Rights Talk and Culture Talk:
Essays in the Comparative Politics of Rights and Culture (Cape Town:
Palgrave Macmillan, 2000), pp. 136-148.

[680]
At the same time, the State continued to indicate its disapproval of polygyny:
the Deputy Minister of Justice and Constitutional Development was quoting as
saying the Act acceded to polygyny because "the ban would be almost impossible
to enforce and that the popularity of the practice seems to be waning." Quoted
in Bohadi Nkomo, "South Africa: New Customary Marriages Act Sees Women as Equal
Partners," WOZA, November 17, 2000.

[681]
Article 23(3) of Zimbabwe's post-independence constitution, for example,
specifically excludes from the reach of its anti-discrimination provisions the
areas (among others) of: "(a) adoption, marriage, divorce, burial, devolution
of property on death or other matters of personal law; (b) the application of
African customary law." A similar provision exists in article 23 of Zambia's
1991 constitution.

By contrast, Namibia's constitution (article 66) recognizes customary
law and customary marriages but does not exempt the former from
anti-discrimination protections. South Africa's 1996 constitution does not
formally recognize customary law. Sections 30 protects the right of everyone
"to participate in the cultural life of their choice," and Section 31 protects
the right of everyone belonging to a "cultural, religious or linguistic
community" to "enjoy their culture." Section 15(3) specifically allows (but
does not require) legislation recognising

"i)marriage concluded under any tradition or a system or religious,
personal, or family law; or

ii)systems of personal and family law under any tradition or adhered to
by persons professing a particular religion."

The provisions stipulate that such participation, enjoyment, and recognition
must be consistent with the Bill of Rights.

[682]
For a detailed treatment of these processes and perceptions, see Mahmood
Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of Late
Colonialism (Princeton: Princeton University Press, 2000). Mamdani's
formulations are derived from studies of British colonial practice, however,
and should not be reified (as Mamdani himelf sometimes tends to do) into
generalizations about "colonialism" as a universal category.